In the context of labour arbitrations, long service has often been a factor invoked by arbitrators to mitigate against serious disciplinary consequences – particularly against terminations of employment for just cause.
The employer in the case of Tonolli Canada Limited v. United Steelworkers, and its Local 9042 is in the business of recycling lead acid batteries. Given that lead is a designated substance under Ontario’s Occupational Health and Safety Act, the company is required to have a Designated Substance Control Program in place. Among other matters, the program requires employees to wear respirators to protect them from inhaling lead dust. In order for the respirators to function properly, a clean seal is required such that employees must be sufficiently clean shaven to facilitate the skin seal of the mask.
The company terminated the employment of a 37-year employee, Frank Marsiglia, for just cause following two incidents in which Mr. Marsiglia failed to report to work clean shaven and failed to wear his hard hat, safety glasses and a respirator (“PPE”), despite prior warnings. While the company conceded that these incidents alone would likely not suffice to establish just cause for termination, it pointed to Mr. Marsiglia’s rather extensive employment and disciplinary record to support its position.
Specifically, in the one year period prior to his termination of employment for just cause, Mr. Marsiglia had 7 instances of discipline on his record, including a number of warnings about his failure to wear PPE and a 25-day suspension following a number of serious safety incidents – including the unsafe operation of a loader, a failure to report a collision and sleeping in a Bobcat during work time.
The company took the position that Mr. Marsiglia’s repeated safety violations over the one year period amounted to just cause for termination, despite Mr. Marsiglia’s long service. It also pointed to the fact that Mr. Marsiglia was a certified member of the company’s Joint Health and Safety Committee, such that he was well aware of the specific health and safety standards relevant to his performance. The union took the position that while discipline was appropriate, termination for just cause was excessive in light of Mr. Marsiglia’s long service and various other factors.
After considering the evidence, the arbitrator upheld Mr. Marsiglia’s termination for just cause, despite his long service on the basis that Mr. Marsiglia had numerous opportunities to improve on his performance following various instances of discipline and failed to do so for what the arbitrator referred to as “one of the most patient employers I have seen in my more than 25 years as a labour relations adjudicator.”
This case makes it clear that the traditional arbitral approach to long service may give way when the employee misconduct in issue involves serious and repeated safety violations.