Employee downplayed misconduct that breached company policy, the law
An Alberta employer had just cause to dismiss an employee who was caught using his cellphone while driving, an arbitrator has ruled.
The employee was a truck driver for BFI Canada, a waste management company in Edmonton. He was hired by BFI’s predecessor in 2001 as a labourer and became a truck driver in 2006.
In 2010, the company merged with BFI and the employee’s employment continued uninterrupted. In 2013, he was disciplined four times for different types of misconduct, including a verbal warning for damaging a trailer while loading, a written warning for damaging a structure while backing up a loader, a one-day suspension for failing to carry out a pre-trip inspection of his truck, and a three-day suspension for insubordination.
Three-day suspensions were commonly the final step in BFI’s progressive discipline policy.
The employee disagreed with the discipline in each case and said he was being harassed by management and blamed for misconduct by other employees. He suggested the company wanted him to leave and the union should negotiate a severance package “to walk away.”
The original company had one of the worst safety records in the industry for injuries and fatalities. BFI was determined to change this with training and a new culture, including discipline when necessary. And drivers were required to take periodic safety quizzes.
BFI’s safety policy included a restriction on cellphone use — only hands-free devices could be used while driving and any texting or emails were prohibited while in transit, which was consistent with Alberta’s distracted driving legislation. The policy indicated violations would be subject to discipline up to termination. BFI trained its drivers on cellphone safety and the employee acknowledged he understood the policy.
Drivers commonly received calls from the company dispatcher and customers while in their vehicles and they purchased their own phones and hands-free devices. If they didn’t have a hands-free device, they had to deal with calls when they were stopped.
Each BFI truck had a dashboard video camera that was monitored by a third-party company. The cameras recorded activity both inside and outside the truck, and any notable information was sent to BFI in a report.
Dash cam recorded driver
On Nov. 13, 2013, BFI received a report on a recording in the employee’s truck from the day before. The district manager determined the employee was using a cellphone while driving. The video showed the employee looking down at the phone while the truck was in motion for eight seconds before putting it in its cradle and looking out the window.
The manager considered this “egregious and dangerous,” particularly since it appeared some nearby gas pumps and pillars obscured the side view, making it difficult to see other trucks or pedestrians.
However, the employee claimed the truck was hardly moving, he didn’t see anyone nearby and he was holding his foot over the brake when he looked at his cellphone.
He said he was either receiving a call or hitting the speed dial button to make a call before putting the phone in its cradle to use his Bluetooth hands-free device. He claimed he was not actually using the handheld cellphone and he had done nothing wrong.
BFI considered the fact the employee had been disciplined four times in the previous year and, in each case, he had tried to downplay the seriousness of his misconduct or made an excuse, rather than accept responsibility.
With his most recent misconduct considered dangerous — and also a violation of Alberta legislation — his failure to take responsibility yet again, and the cumulative effect of his previous misconduct, BFI decided to dismiss the employee for cause.
The employee filed a grievance, arguing he did not violate BFI’s cellphone policy or distracted driving legislation and he only wanted to start the call before he got going so he could use his Bluetooth.
Arbitrator weighs in BFI followed a progressive discipline approach, starting with a verbal warning, progressing to a written warning and then suspensions, found the arbitrator. The employee’s final misconduct for which he was dismissed came after a three-day suspension that was, in most cases, considered the final step of the disciplinary ladder before termination, regardless of how other employees were disciplined for similar misconduct.
And despite the employee’s explanation, the video depicted him driving his vehicle while using his cellphone, a violation of company policy as well as Alberta law while also being dangerous, said the arbitrator.
“It takes but a moment for a person, animal or vehicle to suddenly come in harm’s way,” said the arbitrator. “The (employee) should not have been driving at any speed while paying attention to his phone rather than the road, a rule of which he was fully aware.”
The arbitrator also found the employee’s attitude showed no recognition of the danger of his misconduct and little indication he learned anything from the discipline or would do anything differently.
Given these facts and his previous discipline over a short period of time, the arbitrator ruled dismissal was appropriate.
For more information see: BFI Canada Inc. and TC, Local 362 (Dismissal), Re, 2015 CarswellAlta 237 Alta. Arb.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at [email protected] or visit www.employmentlawtoday.com for more information.
