Written on behalf of Peter McSherry

When a person is wrongfully terminated from their employment, the law dictates that the goal should be to restore that person, as much as is possible, to the position they would have occupied had they not been wrongfully terminated. However, the compensation to which a wrongfully terminated person may be entitled to is dictated, in part, by the manner in which the person is employed. If the terminated person belonged to a union, then the forms of compensation that may be paid can differ from what a non-unionized employee may be entitled to receive. When assessing the amount of damages owed to non-unionized employees following a wrongful termination, courts will consider damages in terms of reasonable notice, benefits, bonuses and other entitlements, of which are due to the employee. For unionized employees, however, the matter is determined by an arbitrator, who will review the circumstances of the case and may order compensation on similar terms as the courts.

A key distinction between what a court and an arbitrator can order is that an arbitrator may order that a wrongfully terminated person be reinstated to their position with the company. In this manner, an arbitrator is truly able to restore the wrongfully terminated employee to the position they would have occupied had they not been terminated. However, reinstatement is not ordered in every case. Rather, there is a specific analysis that must be undertaken before an arbitrator will determine that reinstatement is an appropriate, reasonable and justifiable remedy to the unjust termination case before them.

Unionized Employee in Safety-Sensitive Position

The matter of GreenFirst Forest Products (QC) Inc. – -Chapleau Sawmill v United Steelworkers, Local 1-2010 involved the grievor (“KG”) who had worked as a labourer at GreenFirst Forest Products (QC) Inc. (“GreenFirst”) in Chapleau, Ontario. GreenFirst operates a sawmill plant that produces softwood lumber products. The worksite was acknowledged by all parties to be a dangerous one, so much so that the collective agreement applicable to the unionized workers of GreenFirst included a clause in which the danger of the site was acknowledged and it was agreed that the union would fully cooperate in the promotion and enforcement of safety rules and procedures. Safety had become increasingly important at GreenFirst’s Chapleau location after a fatality occurred at the plant in 2018.

During the week of July 17, 2023, GreenFirst was shut down in order to enable necessary maintenance work to be completed. A number of outside contractors were onsite at this time, including an employee with a cube truck who had been hired to carry out some hot welding. The welding was carried out both inside and outside of the truck, such that a GreenFirst employee, Tyler, was assigned to stand near the truck and watch to make sure that the welding would not cause a spark that could potentially ignite a fire.

Employee Violates Worksite Safety Policy

KG was using a wheelbarrow and shovel to complete some clean-up work in the fire shack. At some point, KG determined that he would rather use a Uniloader for the clean-up, despite the fact that he was neither trained on how to use the Uniloader, certified by his supervisor to use the Uniloader, or authorized to use the Uniloader. Further, KG was aware that company policy prevented him using the Uniloader without proper authorization, training and certification. Despite all of this, KG decided that he required use of the Uniloader, which necessitated that KG drive the vehicle past the truck in which welding was taking place.

Upon completion of his task, KGl backed the Uniloader into the welder’s truck causing damage, including dents and scratches to the vehicle. No people were injured in the incident. The incident was immediately reported to the appropriate supervisors. GreenField then undertook an investigation of the incident, including a review of KG’s disciplinary history, which included:

• one written warning for failing to follow a supervisor’s directive;
• a one-day suspension for failing,
• after several reminders, to wear appropriate PPE (safety glasses); and
• a two-day suspension for being disrespectful to a co-worker.

At the conclusion of the investigation and based on its findings, KG’s employment with GreenFirst was terminated.

Union Grieves the Worker’s Termination

The union grieved the termination of KG’s employment. It claimed that, while his decision to operate the Ubisoft without training, certification or permission was a significant mistake, KG had not been reckless in his actions. They claimed that KG had operated the Ubisoft slowly and carefully and was aware of his surroundings, but that he had inadvertently failed to leave sufficient space to safely back the vehicle past the welder’s van. Moreover, KG had immediately reported, and accepted responsibility for, the incident.

When a union grieves the termination of an employee, the arbitrator assigned to hear the case must determine “whether discharge was the appropriate disciplinary response, or a lesser form of discipline was just and reasonable in all of the circumstances”. Thus, an arbitrator may determine that termination was appropriate, and let the decision stand. Alternatively, the arbitrator may substitute some lesser punishment, in the event that termination of employment is viewed as an outsized response to the incident(s) that precipitated termination.

Arbitrator Acknowledges Employee’s Actions Constituted “Significant Safety Lapse”

The arbitrator noted at the outset that KG had “showed exceedingly poor judgment in using the Uniloader”, as he had not been authorized to do so, and had not been trained on how to safely operate the machine. The arbitrator noted that KG’s actions constituted a “significant safety lapse” and acknowledged that he was troubled by KG’s disciplinary history, particularly in relation to safety violations. However, the arbitrator also noted that “the safety violation in this matter … is materially different than his failure to wear safety goggles”, as the use of the Uniloader while not certified to do so constituted a “significantly more serious matter”. The arbitrator also found that he could not “conclude that his record shows such a ‘pattern’ of disregard for the rules and instruction that he cannot learn from what occurred”.

Given that KG had acknowledged his mistakes, both at the time of the incident and at the hearing before the arbitrator, and that he had demonstrated that he understood the gravity of his actions in relation to the use of the Uniloader, the arbitrator was satisfied that KG “now realizes the importance of safety training and certification for using mobile equipment.”

Arbitrator Orders Terminated Employee to be Reinstated

As a result, the arbitrator was convinced that KG posed a low threat of repeating his error, and that he “can learn, through this discipline, additional training and experience, to be a safety conscious and productive employee”. Moreover, “under the concept of progressive discipline, to which the Company adheres, employees can and do learn from their mistakes”.

Accordingly, it was ordered that KG be reinstated to his position with GreenFirst, and a four-month suspension substituted for his termination. Thus, the arbitrator was satisfied that “a lesser penalty is ‘just and reasonable in all of the circumstances’.”

Contact the Law Office of Guelph Employment Lawyer Peter A. McSherry for Your Union Concerns

If you are a member of a union and are wondering what your rights are as an employee, contact the Law Office of Peter McSherry. Whether you want to better understand the terms of your collective agreement, the obligations of your union, or the grievance process, our experienced employment law team will provide you with the knowledge you need to help you move forward following an employment-related dispute.

From our office in Guelph, Peter A. McSherry is proud to serve employees across Southern Ontario and to assist all employees, whether unionized or non-unionized, with the information they require to achieve resolution of their employment-related matters. Contact us today either online or by telephone at (519) 821-5465 to learn how we can assist you.