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Workplace Safety, Overtime policies

Paul worked delivering propane as a truck driver.  One morning, alone in the yard, he started to fill up his truck with propane.  Contrary to regulations, he did not put chalk blocks around his wheels while loading the truck.  He left the truck unattended while he wondered off to the office to do some paperwork.  When he returned to the truck, he did not circle the truck before moving it.  If he had put in the blocks he would have had to. As he put the truck in reverse and began to move, he heard a big “whoosh” sound and saw in his mirror that propane vapour was escaping from the fill line.  He had forgotten to detach the hose between his truck and the tank.
It’s bad enough when someone does this at a gas station and it makes for fun Youtube videos but when you do it in a propane truck, it’s quite serious. 

There was nothing Paul could do to stop things now as valves were broken and for the next 15 to 30 minutes, 5000 litres of propane escaped into the atmosphere.  Eventually, the truck’s auto re-fridgeration system kicked in which stopped the gas from escaping.

The safety policies under which he had been trained indicated that he should have immediately contacted the fire department to let them know there was a problem.  Paul did not do that or call his boss.  He called a co-worker and then wondered off and left the site to find a wrench so he could try to fix one of the valves. That auto-refridgeration system can malfunction at any time and if it did, the gas would start flowing again. 
He did not lock the site while he was away.  He could not fix the problem with his wrench but decided to go for lunch, again leaving the site unlocked.  The site needed to be locked so that nobody could be around the escaping gas with a vehicle or anything else that could ignite the vapour.  Luckily that did not happen.  Unluckily for Paul, he was terminated for just cause. 

When Paul sued, he claimed, in part, that his safety record has otherwise been ok and that this one incident did not justify his being terminated without notice.  The Judge did not agree.  Proper safety procedures had been well distributed and Paul had acknowledged in writing having received training on to those procedures.  The policies themselves said that any violations could lead to termination without notice.  Paul tried to claim that he wasn’t dealing with things well after the incident in following procedure because the propane vapours had made him confused.  The experts said otherwise.  The Judge did not believe that Paul had actually inhaled any significant amount of the vapours. While ultimately nobody was hurt, Paul’s actions could have been extremely serious and killed someone including himself.  The Judge decided that there was just cause for Paul’s series of safety procedure violations before and after the incident. 

So the employer was on solid legal ground in its position but its house was not entirely in order.  Paul also claimed for almost $40,000.00 in unpaid overtime he says he should have been paid over the last 5 years of his employment.  The employer claimed that Paul was not eligible for overtime under employment standards legislation because he was a manager.  Paul’s job, however, was to take orders for propane, deliver that propane and collect the money.  He was nobody’s boss and had almost no management duties.  Paul was awarded his $40,000.00.  The employer sent a good message to its other propane truck drivers that safety procedures were important and could lead to termination without notice.  The message that also got sent was that if Paul was not a manager, neither were they and they were owed overtime.  It leaves one wondering whether the company should have just paid Paul off in the first place. 
 
 
Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. Email him at ecanning@rossmcbride.com
For more employment law information; www.hamiltonemploymentlaw.com
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com