Employee sent letter after termination acknowledging his misconduct and vowing to be better if given another chance
There is a high bar for establishing just cause for dismissal in Canada. Often, one of the main considerations in determining whether there is just cause is the disciplinary steps taken by the employer to ensure the employee in question is aware of her situation and the need to improve. Additionally, once the employee is made aware of the need to change her ways, she has to be given a reasonable chance to do so. That’s where progressive discipline comes in.
However, progressive discipline doesn’t always achieve the desired results. If that’s the case, the employer may very well have reached that high bar for just cause. But even then, a late acknowledgement of responsibility and the need to improve by the employee — even after termination — could save that employee’s job.
An Ontario bus driver who was fired after being disciplined several times for poor customer service should be reinstated after the driver wrote a letter indicating he finally “got it,” an arbitrator has ruled.
The 52-year-old employee was hired as a bus operator by Metrolinx, the organization running the Toronto-area regional transit service called GO, in March 2001. He was considered a competent driver and in his first decade with Metrolinx he had one instance of discipline — one-day suspension stemming from a customer complaint. Metrolinx had a strong commitment to customer service and held its employees to a high standard.
In February 2012, the driver asked a passenger who was speaking loudly on her cellphone to “keep it down.” The passenger refused and called him a profane name to the person next her, so the driver pulled over and told her he would call the police if she didn’t get off the bus. The passenger complained to Metrolinx and the driver was suspended. He initially grieved the suspension but later acknowledged his actions were inappropriate and dropped the grievance. Metrolinx expressed concern about other complaints that the driver was easily frustrated by passengers using electronic devices onboard his bus.
Ongoing problems with customer
On Aug. 1, 2012, the driver refused to load a mother’s stroller into the luggage bay of the bus, and another passenger volunteered to do it. When the woman sat in the front seat with her crying baby, the driver told her to go to the back of the bus because the crying distracted him. The next day, when the same woman tried to board his bus, the driver blocked the way and said if her baby was going to cry again she would have to go to the back. When she tried to calm her baby with a musical toy, the driver asked her to turn it off.
The woman complained to Metrolinx, also mentioning the driver said “you people.” The woman, who was black, said she felt “discriminated, abused and harassed” by the driver.
The driver admitted to some of the behaviour, but he said he couldn’t load the stroller because he had a bad back. He acknowledged asking the woman to sit in the back both days, but denied insisting on it or making a racist comment.
Metrolinx accepted his explanations, but felt his interaction with the customer was not in line with its expectations. Metrolinx suspended him for three days and gave him a letter stating he must be committed to “an immediate and substantial improvement to your customer service skills” or face “increased disciplinary action, up to and including dismissal.”
On Aug. 21, the driver saw the same customer waiting for his bus. He had previously asked about the possibility of being assigned to another route, but it was difficult because of seniority and bidding priority, so the driver had agreed he would serve the customer in a courteous manner if she boarded his bus again.
However, the driver called Metrolinx to say he was going to refuse service to the woman. Over an open channel, the driver called the customer a profanity and refused an instruction to pick her up.
A supervisor arranged for a replacement and took the driver, who was visibly upset, back to the garage. He urged the driver to call the employee assistance plan (EAP), which the driver did the next day. He saw a psychologist and received a prescription for anti-depressants.
Metrolinx immediately suspended the driver without pay for five days, for insubordination, inappropriate behaviour and “overall performance.”
The driver denied refusing to pick up the customer, saying he had felt a panic attack coming on and his inappropriate language was caused by his mental state.
On Aug. 28, the driver continued to call the customer a liar who caused him stress. Metrolinx placed him on sick leave with a mandatory monitored EAP program along with an anger management program. It informed the driver that failure to complete the program would result in his dismissal and further misconduct could result in discipline including dismissal.
More customer complaints
Between September and November 2012, Metrolinx received three more customer complaints about the driver’s conduct, all saying he reacted inappropriately to loud voices or music. The driver denied everything except for admitting he asked a passenger to turn down music on one occasion. He received a five-day suspension, but Metrolinx acknowledged there was no evidence supporting the complaints and the suspension should be removed.
Metrolinx received a complaint from a customer on Feb. 15, 2013, that the driver had stopped the bus to determine the source of a noise from a customer’s cellphone. He twice told her to put the phone in silent mode, but she refused and was embarrassed at being singled out. The driver denied stopping the bus, though he admitted asking the passenger to turn off the sound of her phone. Metrolinx suspended him for nine days and, because of his previous disciplinary record, he was given a final warning that any future behaviour of this nature would result in his dismissal.
On Nov. 7, 2013, a 16-year-old girl rushed to catch the bus. She didn’t have a fare ready, so the driver told her to take a seat and she could do it once they were on their way, since it was busy. Once on the road, the driver asked the passenger to come to the front and pay. However, the passenger – under the impression she wouldn’t have to pay until they arrived at the destination – had her earphones on and didn’t initially hear.
The driver claimed the passenger asked him rudely if she had to pay now and gave him a handful of coins. After asking if she had any bills, the driver had to pull over to count the coins and there wasn’t enough to cover the fare. Another passenger offered to pay the difference so the trip wouldn’t be delayed further, but the driver declined, saying he would find another destination her fare would cover. The passenger apologized to the other passengers and the driver said he was going to bite his tongue.
Metrolinx received a complaint from the girl’s mother accusing the driver of being verbally abusive. She claimed the driver announced to the whole bus he would have to pull over for “this rude, inconsiderate girl,” would kick her off the bus, and after she apologized he said, “I could say some pretty nasty things but I will hold my tongue.”
The driver denied making the announcement and threatening to kick the girl off the bus, though he acknowledged she was embarrassed and upset. Metrolinx determined the driver did not meet its customer service standards. Given his previous discipline for similar misconduct, Metrolinx terminated the driver’s employment, effective Nov. 28.
A couple of weeks after the termination, the driver sent a letter to Metrolinx admitting he made mistakes, including his reactions to noise on the bus and his “bite my tongue” comment in particular. He pledged not to make those kind of mistakes again if given another chance.
Stages of discipline examined
The arbitrator accepted Metrolinx’s assertion that helping passengers load and unload baggage from the bus bay was part of the operator’s job. By refusing to do so, the driver was refusing to do part of his job. If his back was too injured to do it, he shouldn’t have reported to work as ready to go, said the arbitrator.
The arbitrator also found the various suspensions were reasonable as part of a progressive discipline process, since he had already been disciplined for poor behaviour with a customer.
The arbitrator acknowledged that the driver’s behaviour on the day he refused to pick up the customer “raised a reasonable question about whether there was something wrong with (him) that would interfere with his properly operating a bus.” But he driver had agreed to serve that customer again with courtesy and his state of mind on Aug. 21 “is consistent with his struggling with the difficult choice of having to actually honour his undertaking or suffer the consequences.” Ultimately, the driver’s behaviour was insubordinate, which was a “serious employment offence” for which the five-day suspension was justified, said the arbitrator.
The arbitrator found the February 2013 suspension was warranted but should be reduced to five days since the December 2012 suspension was unwarranted and five days was considered an appropriate length at that point in the disciplinary process.
As for the culminating incident on Nov. 7, the arbitrator found it was reasonable for the driver to ask the girl for another form of payment other than the coins since he was trying to avoid further delays, but his behaviour after that and his comment served only to increase the tension and embarrass the girl, while GO would expect good customer service to alleviate her distress.
The arbitrator noted that the driver didn’t seem to try to mislead Metrolinx about any of the incidents and acknowledged at least some part in each of them. He also had 12 years of service and a significant amount of time had passed between his previous discipline and the culminating incident. In addition, the letter the driver wrote following his termination – though a little late – took responsibility for his misconduct and showed a willingness to mend his ways, which was the purpose of discipline in the first place, said the arbitrator.
Though the driver had pledged to do better following other instances of discipline, the formal letter “increases my estimate of the probability that the (driver) has finally ‘got it’ that he has to do what the employer has directed even if it is different from what he would otherwise have chosen to do,” said the arbitrator.
