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Ontario Health & Safety Act responsibilities and consequences

Mike was an assistant manager at a big box hardware store. He had been working there for four years.
Part of Mike’s obligations under the Occupational Health & Safety Act was to insure that all employees complied with health and safety rules. The Occupational Health & Safety Act actually makes supervisory personnel personally liable and open to criminal prosecution if they neglect to enforce health and safety rules.
One day there was a computer training program happening at the store in the upper level. It was only accessible by stairs and there was an employee in a wheelchair who needed the training. The employee very much wanted to attend.
Mike allowed two people to put the employee in his wheelchair on a skid, strap the wheelchair to it and lift him to the upper level with a forklift.
The personnel policy manual which Mike himself was in charge of enforcing, indicated that if you allowed anyone to ride on a forklift, you were open to immediate termination without notice.
When upper management heard about this incident it was investigated and Mike was terminated. The employer took the position that there was just cause for his termination and that he was not entitled to any pay in lieu of notice. The rule Mike broke was a very serious one which he himself was in charge of enforcing on behalf of the company.
Mike had been an exemplary employee with no disciplinary record and excellent performance appraisals.
The question before the judge when this matter came to trial was not whether the employer had a right to fire Mike…they can do that without any reason at all. The question was whether or not what he did was so egregious that he was not entitled to a severance package.
What do you think?
After all, if anything had happened and the employee in the wheelchair had been injured, both Mike and the employer would likely have been fined and prosecuted by the Ministry of Labour.
Mike won his case. The judge decided that a stern warning would have been an appropriate response by the employer but noted that in the context of his exemplary performance as an employee and Mike’s motivation of wanting to see a disabled employee accommodated in the workplace, that the employer owed Mike pay in lieu of notice. Mike was awarded six months’ pay in lieu of notice.
With the escalating consequences to employers of health and safety infractions in the workplace, some employers have taken the approach that any significant violation of health and safety rules warrants a termination without pay in lieu of notice. That is not the case. The judge in Mike’s case took a look at the entire context of Mike’s employment and decided that although Mike did something very stupid, it did not justify immediate termination without notice.
Although there is no mention of it in the decision, one has to wonder why this employer would have built a big box store with an area in it entirely inaccessible to disabled employees in the first place.
Employers contemplating terminating someone for violation of health and safety rules need to look at not only the seriousness of the incident but also the particulars of the employee involved. If they decide that termination is the best decision for the company, that’s fine. But they may have to provide pay in lieu of notice.

Ed Canning is a partner practicing in the Labour & Employment Group at Ross & McBride LLP.

As published in the Hamilton Spectator, November 12, 2012
Ed Canning
Ed Canning
P: 905.572.5809