NB Power justified in firing foreman with clean record for serious safety violation

Powerline workers on the job. Photo: Kozmoat98/Getty Images/Canva

A recent arbitration ruling out of New Brunswick has underscored the essential nature of safety in workplaces, emphasizing that even a single severe violation can be grounds for an employee’s dismissal, regardless of tenure or prior record.

The decision centered on the grievor, a unionized 20-year employee of NB Power who was a general foreman and certified power line technician (PLT), who faced dismissal due to a safety violation on April 10, 2022.

The grievor chose to work “hot,” bypassing critical safety measures that were in place, in an environment where the risks associated with such an action were significant. In the termination letter, NB Power said that incident alone had “irreparably damaged our relationship with you.”

“You implemented a plan that was, on its face, unsafe and resulted in a near miss,” it read. “You did so despite the plan that was in place for doing the work. You put the lives of your co-workers at risk and later reported that the job had ‘gone well.'”

What happened on April 10?

An automobile accident damaged two power line poles, prompting urgent repair efforts near a restaurant called Chez Raymond in Neguac, N.B.

The damaged poles raised immediate concerns for the restaurant’s power supply and the broader village of Neguac. The original plan to repair the damage involved obtaining a work permit and turning power off to a significant part of the community.

But, following a call with a superintendent, an alternative strategy emerged of switching and installing “dead ends” — power lines that could be isolated and de-energized, preventing a full-blown shutdown and ensuring Chez Raymond’s operations remained unaffected.

Problems arose when extra hands were needed and nobody could be found on the on-call list. (The car accident happened early on a Sunday morning.) The grievor was called and he admitted to being hungover from the night before and in a less than optimal state. But he said he took the assignment because he was “devoted to the company.”

When he arrived, he allegedly said that had he known it was two broken poles, he would not have accepted the call and just gone to bed. After looking at the poles, the grievor said he had an idea and that they could do the work live. There was also rain at the time, which further escalated the risk.

As the work progressed, an alarming incident occurred. A replacement pole being maneuvered came into contact with live wires, causing an “arc flash” — a dangerous phenomenon described as a “ball of fire.” This happened while another worker, equipped only with protective rubber gloves, was holding the pole.

The dangers did not end there. During a subsequent task, the worker experienced multiple electric shocks, believed to have been caused by the grievor. The first was accidental, but subsequent shocks were purportedly intentional, culminating in an intense jolt that buckled his knee.

The ruling

Citing past decisions, the arbitrator invoked the Sulzer Metco (Canada) Inc. v. C.E.P., Local 530A, 2009 case, highlighting that “The arbitral jurisprudence is clear that a single reckless breach of safety standards is grounds for termination, regardless of whether the conduct was deliberate or whether there was an actual injury.”

In the Sulzer Metco case, similarly, an employee with nearly 30 years of service had been dismissed for a significant safety violation.

The grievor’s decisions carried implications not just for his safety but had the potential to harm his coworkers. This breach was deemed especially concerning given his role as a supervisor.

The decision noted, “Unfortunately, the grievor, as a supervisor and as a general foreman, did not live up to this standard on April 10, 2022, and he was lucky that the consequences were not more dramatic.”

The importance of deterrence in such situations was emphasized throughout the decision. The arbitrator quoted from the ruling in Stelco Inc., Hilton Works v. U.S.W.A., Local 1005:

“While employees are not expected to work to a standard of perfection… where such acts involve the breach of an important safety rule exposing employees or members of the public to serious injury or risk of death, a disciplinary response emphasizing the interest in deterrence… will override principles of corrective progressive discipline in the appropriate case, and will justify a stern disciplinary response even for first-time offenders.”

Mitigating factors

The grievor’s defense presented several mitigating factors, most notably his 20 years of employment with the company and a previously clean disciplinary record. However, the arbitrator noted that “It only takes one negligent act to lead to catastrophic results in certain contexts, and even if no catastrophic results occurred here the potential for it was present.”

During the cross-examination, certain admissions by the grievor, such as undertaking work while being hungover and offering dubious explanations concerning the incident, significantly weakened his position.

The arbitrator commented on this, noting the explanation that shocking his co-worker three times was an accident was not convincing.

“We must never forget that honesty is always the best advisor,” the arbitrator said.

The arbitrator also put a spotlight on the grievor’s “state of mind” not being the best on the day of the incident. That can be a mitigating factor in some cases.

“However, in this case, considering the safety-sensitive nature of the work, it was incumbent on the grievor to inform his supervisor that he was not fit to work because personal reasons were affecting his state of mind and also because he was hungover and had gone to bed very late the night before,” the arbitrator said. “He did not and he is the sole person responsible for this omission.

In conclusion, the arbitrator sided with the employer, stating that “notwithstanding the existence of some mitigating factors, I am of the opinion that under the circumstances, the Employer’s decision to terminate the grievor’s employment was reasonable.”

The grievance was dismissed.

For more information, see International Brotherhood of Electrical Workers, Local 37 v New Brunswick Power Corporation, 2023 CanLII 73602 (NB LA)

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