The dismissal of an Ontario employee with 37 years of service but multiple instances of health and safety violations, following a failure to wear safety equipment, has been upheld by an arbitrator.
Frank Marsiglia, 58, worked for Tonolli Canada, a Misissauga, Ont.-based lead and industrial materials recycling company. Over the course of his time with Tonolli, Marsiglia received several warnings and suspensions for failing to follow the company’s occupational health and safety policies. Finally, after Marsiglia was caught not wearing mandatory safety equipment while working and then displaying insubordination towards his supervisors the next day, Tonolli terminated his employment.
After he filed a grievance, Marsiglia acknowledged his misconduct and expressed remorse over his failure to follow policies. However, the arbitrator wasn’t convinced Marsiglia understood the importance of following health and safety policies and that he really felt sorry for his misconduct, particularly given his history of safety violations.
The arbitrator found Marsiglia had had several opportunities to show he could change and rehabilitate his behaviour with his previous instances of discipline, but he had failed to do so. The fact he only acknowledged and said he was sorry for his misconduct after his grievance showed there wasn’t much chance he would be a “productive safety conscious employee respectful of the company’s reasonable health and safety expectations” if he was to be reinstated. Without such remorse, the fact Marsiglia had been working for Tonolli for a long time wasn’t enough to mitigate his repeated disregard for maintaining a safe workplace, said the arbitrator.
“It takes an appropriate timely acknowledgement of the misconduct and an apology which fully accepts responsibility and demonstrates true remorse to raise the mitigation value of a lengthy seniority to a level sufficient to induce an arbitrator to seriously consider reinstating a discharged (employee) guilty of serious repeated health and safety misconduct,” said the arbitrator.
Tonolli’s lawyer, Kevin Coon of Baker and McKenzie, told The National Post it was important to balance the health and safety regulations employers face with disciplining employees who don’t follow safety protocols and put the workplace at risk.
“This has been and remains a dilemma for many employers as they face significant penalties for OHSA violations yet adjudicators will not enforce discipline for health and safety that employers set out,” Coon told The National Post.
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