By Ellen Smith
A miner who complained about feeling ill on the job due to an unknown over-exposure to ammonia gas, and was written up for two alleged workplace infractions on the very same day of his health findings, was granted a favorable judgment in a discrimination claim where MSHA had claimed that his rights under the Mine Act had not been violated.
Complicating the matter, was the fact that the company, Veris Gold, changed its testimony at the hearing before Review Commission ALJ William Moran , and claimed it was firing the miner, Matthew Varady, for a Facebook post on his private page. He posted a comment about a supervisor sleeping in his truck while the miners were “freezing their asses off actually working.”
Varady had been complaining about feeling sick while working at Veris Gold’s carbon-in-leach circuit or CIL. His illness and complaints began in July 2013 when he verbally reported feeling unwell multiple times, and said his claim was not taken seriously, and his condition became worse. He also reported that alarms kept going off in his work area, and he thought he was being over-exposed to cyanide.
Varady met with safety personnel on Sept. 17, 2013, who told him to meet with a doctor for blood work. Unbeknownst to Verady, his ammonia plasma level in his blood was “56,” when a normal range is 11 to 35. The company had no discussion with Varady following this result.
Infractions
Right after his complaint, the company wrote him up on that day for two “infractions.” The first infraction was for not following the chain of command for making complaints. Varady admitted he did not follow the chain of command for his health complaints for several reasons, because he did not believe that the members of management took his complaints seriously.
The second infraction was for yelling and swearing at a fellow employee. Varady admitted to yelling at the employee because he thought they were using too much cyanide, and he believed that was making him sick.
After the company knew of his elevated ammonia levels, and after his health complaints, he was fired on Nov. 8, 2013.
In his complaint to MSHA, Varady identified five individuals who he claimed required him to work in a toxic atmosphere against company policy. One of those individuals he said was Kiedock Kim, who told him to remain in the CIL under fear of being fired if he left that post. Kim is now serving jail time for discharging arsenic-laced water onto BLM land when he was a manager for the French Gulch mine.
The company’s initial position was that he was fired for being written up. The company then, however, changed its position and stated that he was fired for his private Facebook post.
Judge Moran said none of the company’s claims had any merit, called the company’s defenses and evolving claims “hollow.”
Varady was able to produce documentation from a company-wide email encouraging employees to speak with a Dr. Barry Goodfield if they did not feel comfortable communicating with anyone else. It was Dr. Goodfield who Varady went to with his complaints about feeling ill, and belief that he was being over-exposed to cyanide.
A mill supervisor admitted knowing about Varaday’s over exposure to ammonia, but he said he did not believe it presented an issue affecting miner safety. He also admitted that a decision by the employee who Varady yelled at, to increase the cyanide usage, may have possibly created a toxic environment.
Insubordination
The chief operating officer for the company, however, said that Varady was fired for his Facebook post, and he said he had Varady fired to “set an example.” He claimed that the Facebook post was insubordination because it “reduced the effectiveness of the chain of command,” and he believed the post was mocking a supervisor.
Judge Moran said his private post was distributed to a select group of friends, and it was not posted for “consumption by the general public … it was no different than if Varady had telephoned each of those Facebook friends and instead spoke the same words of criticism.” It was also noted during the trial that the company had no social media policy, and the human resource manager agreed that employees have the right to use and post social media.
The HR manager said he believed that an employee who demeans a member of management hurts the company’s reputation, but he arrived at that interpretation only after the decision was made to fire Varady.
Several employee and former employee witnesses supported the miner’s testimony that the “Veris operation was run sloppily and safety issues were not received favorably by management … there was a callous attitude towards safety and health issues at Veris,” the judge wrote.
While a case of discrimination was found, Varady said he does not want to go back to work at Veris Gold, but would like to find other employment. The judge said that Varady must make a list of damages to present to the Review Commission judge, including lost wages plus interest, copying expenses, costs for subpoenaing witnesses, medical expenses including insurance premiums that the miner had to pay, lost vacation pay, mileage, telephone calls and postage.
MATTHEW VARADY V. VERIS GOLD USA INC., 9/2/2015, FMSHRC(J) No. WEST 2014-307-DM; 22 MSHN D-1932