OLRB denies termination and severance pay to employee who engaged in horseplay with a forklift
Brian Barrett was a “team lead” for Sims Group Recycling Solutions Canada Ltd. (“Sims”). As part of his duties, Mr. Barrett was required to operate a forklift. He was trained and certified to do so and was a member of Sims’ joint health and safety committee.
On February 3, 2011, just before the end of his shift, Mr. Barrett took his forklift and drove at an elevated speed into a puddle on the warehouse floor, turning the wheel of the forklift as he hit the water and spinning out of control (colloquially, “performing a doughnut”). The forklift hit a large concrete block and was visibly damaged. Mr. Barrett wiped down the point of impact and left work for the day without reporting the accident.
The next morning, two other employees reported the matter to their supervisor. Sims conducted a full investigation in which Mr. Barrett was interviewed and given an opportunity to “come clean”. However, Mr. Barrett claimed that he had spun out of control by accident when he hit the puddle and denied being involved in a collision. Sims proceeded to terminate Mr. Barrett’s employment without notice or pay in lieu of notice on the basis that he had engaged in horseplay, he had failed to report an accident as required, and he had deliberately attempted to conceal the accident.
Mr. Barrett filed a complaint with the Ministry of Labour for termination pay and severance pay. The Ontario Labour Relations Board overturned an initial decision in favour of Mr. Barrett and noted that Sims had clear policies that prohibited horseplay in the workplace and required the reporting of all accidents. The policies also made it clear that engaging in horseplay could lead to the termination of an employee’s employment without compensation. The Board found that Mr. Barrett was aware of these policies and had intentionally contravened them, creating a significant safety hazard, which he then tried to cover up. As a result, the Board concluded that Mr. Barrett had engaged in wilful misconduct or wilful neglect of duty that was not trivial and was not condoned by the employer and was therefore not entitled to termination and severance pay under the Employment Standards Act, 2000.
This case illustrates that where employers have clear and well-communicated safety and disciplinary policies, a violation of these policies can support the termination of an employee without notice or pay in lieu of notice.