Safety first: $60k in damages despite OHSA breach

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How would you get a disabled worker to a second-floor meeting, when there was no elevator available? When two Rona employees arranged to use an order picker to do just that, it ended in two employees being  terminated, including the supervisor. However, a judge found the company lacked just cause in firing the supervisor.

Kerry Barton had worked at Rona for four years. The second-in-charge of the store, he had received positive reviews and had no discipline on his record. When he heard about the employees’ plan to move wheelchair-bound Kai Malmstrom to a second floor training session he “tried to communicate” his discomfort, but failed to directly order Malmstrom and the machine operator not to perform the lift. The arbitrator described this as his “most serious mistake”.

“There was a lot of confusion as to whether the individuals directly involved thought they had permission,” Filion Wakely Thorup Angeletti employment lawyer Geoff Ryans said. “A manager’s job is to ensure that if something doesn’t comply with health and safety then they make it clear it cannot be done.”

The judge found that Rona’s dismissal of Barton did not meet the conditions for just cause, but was not overly critical of the company’s process. He specified that the company had a business case for the termination, because of the health and safety aspect, but that Barton was entitled to reasonable notice.

“It’s not surprising considering how big an issue the health and safety is that the employer took a hard-line position and terminated for cause,“ Ryans said. “Some of the language of the judgement doesn’t necessarily fault them, but it suggests the same outcome could have been achieved with a lesser form of discipline.”

Rona, as the owner organization, had put in good policies and in that sense had done all it could. It expected those policies to be carried out by first level employees and Mr Barton as supervisor, Ryans added. In this case the judge found that Barton was entitled to 10 months’ salary in lieu of notice, a total of $58,900.  Because of Barton’s role in the situation he reduced that amount $54,580.






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