Clarke was fired from the Long Harbour Construction project when he failed to comply with the site’s safety requirements.
Newfoundland and Labrador-based KBAC Constructors terminated Clarke after an investigation determined he neglected to tie off above six feet.
The employer’s safety requirements include several site safety absolutes. One of the site safety absolutes requires employees to use fall protection — commonly known as being tied off — when working at heights of more than six feet.
There is zero tolerance for non-compliance with a site safety absolute.
On Aug. 24, 2012, Clarke was found working at a height of about seven feet, leaning out over the end of the scaffold, and not tied on.
He was wearing a harness on his chest but was not hooked into any restraint system.
He testified he had completed most of the work in the first part of his shift, during which time he was tied-off.
After his lunch break Clarke noticed a piece of scaffolding that needed to be adjusted. He testified he was not above six feet for more than 30 seconds without proper fall protection.
Clarke could not explain why he was not tied off during the incident.
Clarke was escorted off the worksite and informed he was suspended pending an investigation into the incident.
Bryan Reese, operations manager, testified Clarke was distressed as he was escorted off the site.
Clarke apologized, admitted he was wrong and repeatedly requested a warning in place of more serious discipline.
Following the investigation Clarke was fired on Sept. 1, 2012.
The Resource Development Trades Council of Newfoundland and Labrador (RDTC) grieved on Clarke’s behalf.
The union requested Clarke be reinstated with full benefits and lost wages. Alternatively, the union asked his dismissal be substituted for a warning or a short suspension.
At the time of the incident there was no documented discipline on Clarke’s record. He admitted he was wrong, had apologized for his actions and co-operated with the employer. The investigation did not consider any mitigating factors, the union submitted.
The Long Harbour Employers Association — representing KBAC Constructors in arbitration — submitted the company’s zero tolerance of violations of site safety absolutes was necessary to achieve the goal of a safe workplace.
The rule applies whether an employee is working at seven feet or 30 feet, and regardless of the length of time an employee spent working at height.
The six foot tie-off rule was unilaterally imposed by the employer and is recognized as common practice in the construction industry.
Whether Clarke was negligent or simply forgetful, the employer argued, serious discipline was justified.
Sole arbitrator James C. Oakley agreed with the employer.
Oakley ruled the six foot tie-off rule is reasonable, adding the rule was clear and unequivocal.
"(Clarke's) breach of the rule was not trivial or insignificant," Oakley said in his ruling.
"He knew he was in violation of the rule. He had no explanation for the violation. The fact he was in violation of the rule for a brief period of time does not make the offense trivial. There are no compelling mitigating circumstances, having regard to the grievor’s personal circumstances, employment record and length of employment on the construction site."
Oakley found the employer had just cause to discharge Clarke and denied the grievance.