Driver was on last-chance agreement after previous health and safety violations, but termination was too much: Arbitrator
Getting into an accident while on the job may be the last thing an employer would want to happen to one of its truck drivers, but a fender bender by one Ontario driver was not a serious enough safety violation to warrant dismissal, the Ontario Arbitration Board has ruled.
James Bennett, 32, was a garbage truck driver for Waste Management of Canada (WMC) hired in March 2006. Over a period of three years with the company, Bennett received several disciplinary warnings and suspensions for violating the company’s policies. Several of these incidents involved health and safety issues. The discipline followed WMC’s progressive discipline policy, which started with verbal and written warnings, through suspensions of various lengths and ending in dismissal. Severe misconduct could warrant dismissal without progressing through the different stages, but the collective agreement allowed for an employee’s record to be wiped clean if the employee remained discipline-free for one year.
Bennett was dismissed on March 19, 2009, for failing to follow company policies and directions, including health and safety rules. He was reinstated by an arbitrator five months later with the intervening time serving as an unpaid suspension. The arbitrator also placed a strict rule that if Bennett violated a “serious rule” regarding health and safety, over the next three months, WMC would be entitled to terminate his employment for cause.
When Bennett returned to work on Aug. 16, 2010, he was required to take a one-week course on defensive driving and a review of WMC’s safety procedures for operating a garbage truck, including stopping at a stop sign and verifying an intersection is clear before proceeding. The defensive driving techniques included looking ahead for hazards and checking blind spots.
Slow-moving garbage truck collided with car at intersection
On the morning of Feb. 1, 2011, Bennett was driving a garbage truck during a garbage collection shift. He stopped the truck at an intersection where there was a stop sign and cross-traffic had the right of way. After looking in both directions for traffic, Bennett moved the truck into the intersection. However, a co-worker on the back of the truck saw a car approaching the intersection from the right and pressed an alarm to alert Bennett.
Bennett and the other car braked at the same time and they bumped each other as they stopped. There was no damage to the garbage truck and the car had a plastic headlight cover broken and a scuffed fender.
Bennett immediately checked on the driver of the car, who was shaken but unhurt, before reporting the accident to WMC. Bennett thought the car must have been in his blind spot as he didn’t see it until they collided. The accident was also reported to the police, who didn’t follow up because of the minimal damage.
A route manager investigated and allowed Bennett to finish his route. However, it was determined Bennett should have seen the oncoming car by checking the intersection before pulling into it. WMC considered his failure to yield as a serious breach of its health and safety rules under the last-chance agreement from his previous reinstatement and terminated Bennett’s employment on the day after the accident, Feb. 2, 2011.
Bennett acknowledged he should have checked his blind spot before entering the intersection but contended it was a “momentary lapse” that wasn’t serious enough to warrant dismissal. He apologized for his actions but said he was otherwise driving safely and was travelling at a slow speed that resulted in minimal damage and no serious safety risk.
The arbitrator noted there was no definition of what a “serious” breach of health and safety rules constituted in the last-chance agreement but felt it was deliberately broad to allow flexibility in interpretation. However, a case of a driver operating his vehicle in a safe manner who has a momentary lapse of judgment is less serious than carelessness or negligence, said the arbitrator.
The arbitrator found that even though Bennett’s misconduct was “not insignificant” and he had a poor disciplinary record, his momentary lapse was not serious enough to cause the last-chance agreement termination provision to kick in. There was no evidence he was driving recklessly and his actions immediately following the accident were responsible and conscientious enough to mitigate the seriousness of his lapse in judgment, said the arbitrator.
WMC was ordered to reinstate Bennett with a six-week unpaid suspension — the time elapsed between his dismissal and the arbitrator’s decision — with the understanding that “he faces almost certain dismissal for any subsequent breach of his employment obligations for the duration of the (one-year) sunset clause in the collective agreement, wherein his lengthy disciplinary suspension will now remain on his record until at least Jan. 31, 2012.”
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