Worker felt truck wasn't fit to haul loads but company wanted him to deliver a load before bringing it back
An Ontario company must pay a short-term employee nearly four months’ pay after terminating him for refusing to drive a truck the employee felt was unsafe.
Wade Barber was hired by LP Services, a Hamilton-based steel transportation and warehousing company, on Aug. 14, 2012, to be a truck driver. Barber’s job involved driving trucks hauling steel in the Niagara region.
On Nov. 5, 2012, Barber noticed some problems with the truck he had been driving since he started with LP. He had driven nearly 20,000 km with it in his three months with the company, so he brought the truck in to the company shop for service.
When Barber dropped off the truck, LP provided him with a replacement to drive. While driving it home, Barber noticed the steering was loose and the mirrors made it difficult to change lanes due to cracks and vibrations blurring the image. He also learned there was no engine brake, a portion of the dashboard had been removed leaving exposed wires, and fuel was leaking from the caps of both fuel tanks.
After thinking about it overnight, Barber decided the truck wasn’t fit to haul steel, particularly down an inclined portion of the route where an engine brake was usually used. He called the dispatcher in the morning and said he would not use the replacement truck to haul steel because it was unsafe. The dispatcher called him back and asked if he would haul one load of steel back to Hamilton, where he could then get another truck. Barber said he would bring just the truck — with no trailer — to Hamilton but wouldn’t haul any steel.
The general manager of LP called later in the morning and, when Barber explained why the truck was unsafe, became upset and started swearing. Barber said he would hang up and talk later “when cooler heads prevail,” but the general manager told Barber he was fired and to leave the keys in the truck.
Barber filed a complaint saying he was terminated for exercising his right to refuse unsafe work. LP claimed Barber was a probationary employee who was terminated for his conduct towards other employees. It claimed Barber had refused to return another drivers CB radio in a truck he started using and that Barber yelled and swore at the dispatcher when he called about the replacement truck. Barber denied both accusations.
Addressing LP’s claim that Barber had displayed aggressive behaviour, the board found no evidence this was the case. Regardless of whether the CB radio story was true or not, the board noted LP had not given Barber any warning that it was unacceptable and therefore it could not be used as a factor in Barber’s termination. The board also found Barber had no reason to be aggressive towards the dispatcher when calling about the replacement truck, since the dispatcher wasn’t his supervisor and had nothing to do with assigning him the truck.
The board found Barber had good reason to believe the replacement truck wasn’t fit to haul steel and his refusal to drive it was a refusal of unsafe work to which he was entitled under the Ontario Occupational Health and Safety Act. Barber also met his own obligation under the act when he promptly reported the circumstances to his employer, said the board.
The board also found LP failed in its obligation to promptly investigate Barber’s report and his termination was at least partly motivated by his refusal, as it was done so quickly.
The board determined reinstatement wasn’t salvageable given Barber had only worked for LP Services for 12 weeks and there was a clear lack of trust between them. It ordered LP Services to pay Barber back pay for the four months since his termination plus an addition four weeks reasonable notice, totalling $21,600. See Barber v. LP Services, 2013 CarswellOnt 2363 (Ont. Lab. Rel. Bd.).
