Goodyear suspended then fired worker for overriding safety device three months after company was fined for OHSA violation
Call it the case of the worker who should have known better. Edward Cummings, a mixer operator at Goodyear in Bowmanville, Ont., was suspended and fired after he overrode a safety device on a milling machine. An arbitrator has ruled he should be reinstated.
Why should he have known better? Cummings was a member of the company’s joint health and safety committee. He was busted following an anonymous tip to management that he was bypassing the safety device — a tip that came in the same day Cummings had conducted a safety inspection of the factory.
Goodyear, which had recently been fined $60,000 for a violation of Ontario’s health and safety laws, felt termination was appropriate. It argued he had placed himself, and other employees, in jeopardy and exposed the company to further investigation and fines had an injury occurred.
The union agreed some form of discipline was warranted, but said termination was too harsh, especially since other employees had tampered with the safety device without being disciplined. Also, there was a similar machine in the plant that hadn’t been equipped with the same safety barrier the province had required for the machine Cummings was using.
Cummings was a 14-year employee who had given no excuses for his conduct, had not implicated his fellow workers and had expressed remorse. On top of that, he was initially told he was suspended but later was discharged — an outcome the union said was tantamount to being disciplined twice for the same offence.
The arbitrator first dealt with the issue of double jeopardy. He found Goodyear had not made a final decision on how long the suspension would last when Cummings was suspended. The decision to fire him followed an investigation and Cummings was not the victim of “multiple disciplinary penalties for his single act of misconduct.”
The arbitrator then dealt with the issue of Cummings being punished for something other employees had done without facing discipline. The company pointed to two other items on his disciplinary history and called his dismissal a culminating incident. The arbitrator, referring to several cases involving workplace safety infractions, noted:
• safety infractions are among the most severe workplace offences;
• the employer is obliged by law to maintain a safe and secure workplace and insist workers abide by the safety rules;
• breaking a safety rule does not have to result in injury for it to be serious;
• the company must not discriminate in enforcing safety rules and punishment must be meted out consistently and fairly; and
• the most important factor in mitigating punishment is whether the offender is likely to repeat the offence.
Enforcement not consistent
The arbitrator found Cummings had deliberately tampered with the reset button. But the arbitrator also considered his lengthy service record, which included only two previous disciplinary notations, neither for safety infractions. The arbitrator was also puzzled why there was a safety device on one milling machine but not the other. Moreover, the evidence showed other operators of the machine routinely jammed the reset button, yet supervisors had apparently not discovered this infraction since they hadn’t enforced the safety policies. Only an anonymous tip had alerted management to Cummings’ action.
“These circumstances point to a certain lack of uniformity of enforcement of its safety policies,” the arbitrator said.
Cummings also accepted full responsibility for his actions and promised it would not happen again. The arbitrator concluded the employment relationship could be re-established and substituted a four-month unpaid suspension — as a message of deterrence to other machine operators — for the dismissal.
For more information see:
•Goodyear Canada Inc., Bowmanville Factory, and the United Steelworkers, Local 189L (Jan. 14, 2008), William A. Marcotte – Arbitrator (Ont. Arb. Bd.).
Lorna Harris is the assistant editor of Canadian HR Reporter’s sister publication CLV Reports, a weekly newsletter that reports on collective bargaining and other issues in labour relations. For more information www.hrreporter.com/clv.
Why should he have known better? Cummings was a member of the company’s joint health and safety committee. He was busted following an anonymous tip to management that he was bypassing the safety device — a tip that came in the same day Cummings had conducted a safety inspection of the factory.
Goodyear, which had recently been fined $60,000 for a violation of Ontario’s health and safety laws, felt termination was appropriate. It argued he had placed himself, and other employees, in jeopardy and exposed the company to further investigation and fines had an injury occurred.
The union agreed some form of discipline was warranted, but said termination was too harsh, especially since other employees had tampered with the safety device without being disciplined. Also, there was a similar machine in the plant that hadn’t been equipped with the same safety barrier the province had required for the machine Cummings was using.
Cummings was a 14-year employee who had given no excuses for his conduct, had not implicated his fellow workers and had expressed remorse. On top of that, he was initially told he was suspended but later was discharged — an outcome the union said was tantamount to being disciplined twice for the same offence.
The arbitrator first dealt with the issue of double jeopardy. He found Goodyear had not made a final decision on how long the suspension would last when Cummings was suspended. The decision to fire him followed an investigation and Cummings was not the victim of “multiple disciplinary penalties for his single act of misconduct.”
The arbitrator then dealt with the issue of Cummings being punished for something other employees had done without facing discipline. The company pointed to two other items on his disciplinary history and called his dismissal a culminating incident. The arbitrator, referring to several cases involving workplace safety infractions, noted:
• safety infractions are among the most severe workplace offences;
• the employer is obliged by law to maintain a safe and secure workplace and insist workers abide by the safety rules;
• breaking a safety rule does not have to result in injury for it to be serious;
• the company must not discriminate in enforcing safety rules and punishment must be meted out consistently and fairly; and
• the most important factor in mitigating punishment is whether the offender is likely to repeat the offence.
Enforcement not consistent
The arbitrator found Cummings had deliberately tampered with the reset button. But the arbitrator also considered his lengthy service record, which included only two previous disciplinary notations, neither for safety infractions. The arbitrator was also puzzled why there was a safety device on one milling machine but not the other. Moreover, the evidence showed other operators of the machine routinely jammed the reset button, yet supervisors had apparently not discovered this infraction since they hadn’t enforced the safety policies. Only an anonymous tip had alerted management to Cummings’ action.
“These circumstances point to a certain lack of uniformity of enforcement of its safety policies,” the arbitrator said.
Cummings also accepted full responsibility for his actions and promised it would not happen again. The arbitrator concluded the employment relationship could be re-established and substituted a four-month unpaid suspension — as a message of deterrence to other machine operators — for the dismissal.
For more information see:
•Goodyear Canada Inc., Bowmanville Factory, and the United Steelworkers, Local 189L (Jan. 14, 2008), William A. Marcotte – Arbitrator (Ont. Arb. Bd.).
Lorna Harris is the assistant editor of Canadian HR Reporter’s sister publication CLV Reports, a weekly newsletter that reports on collective bargaining and other issues in labour relations. For more information www.hrreporter.com/clv.
