Driver didn't state a clear intention to quit but should have mitigated his losses by accepting job offer at same pay, says arbitrator
An Ontario truck driver was unjustly dismissed but is only entitled to one week’s pay because he refused an offer of his old job back at the same pay, an adjudicator has ruled.
William Banks was a truck driver for Nexus Freight System, a freight transport company based in Brampton, Ont. After he started working for Nexus in September 2007, Banks frequently complained about his pay and the process Nexus used to confirm loads to deliver. Nexus also had issues with Banks’ lack of communication with the dispatcher.
On Jan. 29, 2010, Banks delivered a load in Ottawa but didn’t pick up another one assigned to him. Banks claimed he was feeling sick and slept in his truck for a while, but he didn’t inform his dispatcher of what he was doing and that he didn’t pick up the load.
On Jan. 31, Banks informed his dispatcher he had a dental appointment the next day. The dispatcher asked him if he had picked up the load assigned to him on Jan. 29 but Banks failed to respond, despite multiple attempts to contact him. Finally, Nexus sent him a text message asking him to remove his personal possessions from the truck, as “regretfully” things weren’t working out with him.
Banks soon responded and Nexus’ owner told him to come see him and he would provide Banks’ final cheque if Banks returned the company cellphone. He also clarified the issues Nexus had with Banks’ lack of communication and said he “wouldn’t hesitate to put you back in a truck once we sat down and talk amicably.”
Banks met with the company’s owner on Feb. 5. The owner offered him additional work and asked Banks to let him know within a couple of days. However, Banks felt the issues of his pay and communication had not been resolved, so it wasn’t worthwhile to go back. He then filed a complaint of unjust dismissal.
Nexus argued it had not terminated Banks’ employment because it had not formally advised him he was fired. The company said it had asked him to remove his personal items from the truck so someone could pick it up and deliver the load he had been assigned. Banks’ refusal to take additional work meant he ended the employment relationship, not Nexus, said the company.
The adjudicator found Banks did not make any clear expression that he intended to quit. Though he may have been guilty of insubordination to a certain extent, there was no suggestion he wanted to walk away.
The adjudicator also found the messages on Jan. 31 effectively told Banks his services were no longer needed and subsequent messages discussing the pay and communication issues explained why.
