Employer 'knew what their story was and [the worker's] pattern… and they got all the evidence'
“There are two things that amount to misconduct on a higher level that will justify cause for dismissal - safety and trust.”
So says Melanie Samuels, chair of the Employment and Labour Group at Singleton Reynolds in Vancouver, after a BC arbitrator upheld the firing of a worker for multiple serious driving infractions – including hitting a pedestrian with a cement mixer truck and trying to shift the blame.
“If [an employee] damages safety or trust with the employment relationship, then I think those are always going to be a hard hurdle to overcome [for employees and unions in a just-cause termination],” says Samuels.
The worker was a truck driver for Ocean Concrete in Vancouver since 2016. His job duties involved driving large and heavy concrete mixer trucks. He had no motor vehicle offences but had a three-month suspension for a safety violation.
Ocean Concrete’s plant is on Granville Island, an area of Vancouver that is heavily populated with restaurants, shops, and tourist attractions. There are also concrete pillars from the Granville Street bridge around which some roads pass. The city had designated truck routes through the area that used wider streets and fewer intersections. Trucks with more than two axles and weighing more than 12,000 pounds are required to use the truck routes.
Driver didn’t follow safety routes
On March 24, 2023, the worker drove a loaded mixer truck out of the Ocean Concrete plant to a nearby construction site. However, he took a route on narrower and more congested streets that weren’t truck routes. At the end of the day, he also didn’t take truck routes back to the plant.
On the way back, the worker drove through a yellow light. He continued to avoid truck routes and took a poorly lit street as it got darker. Along this street, the worker drove through two four-way stop signs without slowing down.
The worker reached an intersection at which he needed to turn left. There were concrete pillars on all four corners from the bridge.
The light turned green and the pedestrian crosswalk light indicated people could cross. A female pedestrian to the left of the worker’s truck started crossing as the worker started turning left, but he didn’t slow down. As the worker turned left through the crosswalk, his truck’s left front wheel ran over the pedestrian’s foot.
The worker stopped immediately and the truck’s cab camera showed that he was distressed. However, he stayed in the truck and didn’t call 911, instead pulling over and calling his supervisor.
Employer investigation
The pedestrian was taken to the hospital with a broken foot. Senior staff from Ocean Concrete attended the scene and the company launched an investigation. The worker tested negative for drugs and alcohol and he provided a statement saying that he tried to avoid the pedestrian, but she continued walking into the side of the truck.
It was key for Ocean Concrete to act quickly and investigate, given the importance of safety to its operation, says Samuels.
“They have to take any driving infraction very seriously, as these are huge cement trucks coming out of the cement factory that happens to be on Granville Island, which is a very public, densely populated tourist area,” she says. “They did a thorough investigation to determine what happened, because [the worker] was pushing back and almost blaming the woman he hit.
“I think they were really careful about investigating and understanding exactly how that happened -they didn't make assumptions one way or the other, they did a thorough investigation.”
Footage from the truck’s cameras - one facing outward and another showing the interior of the cab - was reviewed and the worker was interviewed on March 28. He said he hadn’t taken designated truck routes because he thought the way he went was safer and he was more comfortable on the darker street because it went farther in one direction. He also said that he didn’t see the pedestrian until the last minute because she was wearing dark clothing, noting that she appeared to be using her phone on the video rather than looking up.
No explanation for running stop signs
The worker couldn’t explain why he didn’t stop at the two stop signs before the accident. He agreed that he knew the designated truck routes and it was safer to take them. He also agreed that the pedestrian was clearly visible and he just didn’t see her, calling it a “freak accident.” He explained that he was in shock afterwards and, if he returned to work, he would be “doubly cautious” in the future.
Ocean Concrete reviewed the required field level hazard assessment (FLHA) that drivers complete before their trips, but the worker seemed to have just checked off all of the possible hazards rather than giving it some thought.
On May 8, Ocean Concrete terminated the worker’s employment for “the failure to follow safety rules, stop signs and providing the pedestrian right of way.” The termination letter stated that the worker’s behaviour was “fundamentally at odds with the company’s interest in creating a safe and productive work environment.”
The union grieved the termination as unjust. It argued that the “rolling stops” at the stop signs had nothing to do with the accident and the pedestrian was in a blind spot with the concrete pillars and her wearing dark clothing at night. It also pointed out that the pedestrian wasn’t paying attention. In addition, the worker’s actions were not deliberate and he acknowledged he needed to be more cautious. Termination was excessive, as the worker could be returned to work a similar incident happening again, the union said.
Casual attitude towards safety
The arbitrator agreed that the worker failed to properly complete the FLHA and simply checked all of the boxes, but Ocean Concrete didn’t normally discipline employees for it. It wasn’t misconduct, but it reflected the worker’s causal attitude towards safety, the arbitrator said.
The arbitrator found that the worker’s choice to avoid truck routes “demonstrated a lack of concern for safety and a risk of harm to company property and potential liability for the employer” and disobeyed city by-laws, which made it conduct warranting discipline.
As for driving through a yellow light and two stop signs, this also created the potential for serious harm to the worker and members of the public, along with more liability for Ocean Concrete, said the arbitrator in finding these were also worthy of discipline.
The arbitrator found that the camera footage from the accident showed that the worker didn’t make any attempt to take evasive action, meaning that he didn’t see the pedestrian even though the truck camera viewed her clearly once she entered the crosswalk. This showed that the worker’s initial statement that he tried to avoid her and she continued walking into the truck weren’t true, said the arbitrator, adding that the incident could have caused more serious injury.
The arbitrator determined that the worker’s driving was “deliberate, reckless, and potentially negligent” and the accident was “the culmination of a series of serious driving infractions.” In addition, the worker didn’t accept responsibility, as he had no explanation for the infractions and tried to blame the pedestrian. His failure to help her or call 911 exacerbated his misconduct, said the arbitrator.
Lack of remorse
“I think any arbitrator looking at a dismissal for this kind of situation, if there's no remorse, then the worker never gets their job back,” says Samuels. “If he showed remorse, then maybe there could have been a lengthy suspension or driver training, but I think without remorse the guy didn't have a chance.”
Samuels, who is familiar with the area in which Ocean Concrete’s plant is located, notes that the worker’s misconduct also placed the company’s reputation within the community – where it enjoys goodwill - at risk.
“This wasn't in the arbitration, but their trucks are quite well-known as they decorate them so they have high visibility to people in the neighbourhood,” she says. “It’s kind of cool the way they've done it, but that also means that if a customer sees one of their drivers driving unsafely, it creates ill will towards the brand.”
Given Ocean Concrete’s obligation to provide a safe workplace for employees and the public and the worker’s casual attitude towards safety, the arbitrator found that termination of the worker’s employment was appropriate.
The worker’s disregard for safety was misconduct that clearly deserved serious discipline, but Ocean Concrete still had to follow proper procedures to establish cause for dismissal, says Samuels.
“[Employers should] always do a thorough investigation – get all the facts and get your ducks in a row so that when you go to a hearing like this, you’re well prepared,” she says. “[Ocean Concrete] knew what their story was and what [the worker’s] pattern was, and they got all the evidence.”
