Worker was on last-chance agreement with a significant disciplinary history; employment relationship not viable, adjudicator says
A Nova Scotia worker’s rocky disciplinary history meant no reinstatement for being injustly dismissed. Instead, the worker’s former employer must pay six months’ pay in lieu of notice, an adjudicator has ruled.
Derrick Matthews is a bus driver with experience driving various types of buses for several companies. In 2015, he was in is early 60s and looking for part-time work for a period of time before transitioning into retirement. Absolute Charters, a charter bus tour company that is affiliated with Atlantic Canadian tour company Ambassatours, hired Matthews as a part-time charter bus driver in the Halifax area.
Absolute Charters, due to the nature of its business, had seasonal swings. September and October were particularly busy every year, as it was the season when more cruise ships came into port with passengers looking for sightseeing opportunities. During those two months, bus drivers were not allowed to take time off as they were all needed to meet demand.
Matthews was seen as a competent driver with his extensive experience driving large buses, including double-deckers. However, Absolute Charters had to discipline him on multiple occasions within three years of his hiring.
In October 2015 — only a few months after he joined Absolute — Matthews was involved in a minor accident that resulted in Absolute Charters suspending him for one week. One year later, in October 2016, he had a similar accident. In September 2017, the bus he was driving made contact with a tractor trailer and sheared off the tractor trailer’s side mirror. Matthews didn’t report the incident, but Absolute became aware of it when the tractor trailer driver reported him. Matthews said he didn’t report it because he was unaware there was contact.
Shortly after the September 2017 incident, Matthews asked to be taken off the driver rotation during the September-October busy stretch, hinting that he might be quitting his job. However, one week later, he asked to be reinstated. Absolute Charters believed this was an improper attempt to get around the company’s policy against vacation time during that period, so it gave Matthews a verbal warning.
A few months later, in January 2018, Matthews passed some slow-moving vehicles in his bus in a school zone, which was against company policy. He received another verbal warning.
In March 2018, Matthews was involved in two incidents: On March 8, he damaged his bus after sliding on some ice and hitting a pole but didn’t report the incident. The following day, he bumped into a taxi while backing up his bus without a spotter — also contrary to company policy. He tried to resolve the issue directly with the taxi driver to avoid having to report it, but another Absolute employee witnessed the incident and insisted he report it.
Last-chance agreement
At a March 14 meeting with management, Matthews was given a “last-chance” letter that summarized the incidents and stated that “any further violation of company policies will result in your dismissal” and a third preventable collision “within the next year would be considered grounds for dismissal.” He was also suspended pending completion of a driver evaluation, further training and a written test on company policies.
Matthews served his suspension, completed the training and took some time off, returning on April 17. On his second day back, he was assigned to drive a chartered bus early in the morning, taking passengers from a downtown hotel to meetings at Purdy’s Wharf on the waterfront, about two kilometres from the hotel.
Matthews wasn’t very familiar with the streets around Purdy’s Wharf and, on his way to the hotel, he noticed traffic congestion in the area. When he arrived at the hotel, he commented to the group’s liaison that he hoped there wouldn’t be a delay due to the traffic around Purdy’s Wharf. However, the liaison believed Matthews said he wouldn’t be able to deliver the passengers to Purdy’s Wharf and would have to drop them off at a location that was a five-minute walk away. The hotel liaison called the group’s liaison at Purdy’s Wharf to relay the information. The Purdy’s Wharf liaison panicked and ran toward the new drop-off location, where she intercepted the bus and guided it to the wharf. The location was easily accessible through the road system and the passengers were dropped off in the originally planned location.
The client who had chartered the bus contacted Absolute Charters about the incident and the company had to apologize for Matthews unnecessarily causing concern and confusion. It then terminated Matthews’ employment, stating that he should have been familiar with the Purdy’s Wharf area as they made many drop-offs and pickups there, and he should have called the dispatch line about any traffic concerns rather than upsetting the client. The termination letter also stated that he showed poor judgment and violated various policies.
The adjudicator agreed that Matthews showed poor judgment when he said something to the client liaison and may have helped create the confusion. However, the adjudicator found it was “equally plausible that the liaison person misinterpreted what she heard and set in motion these events in error, at little or no fault of [Matthews].”
Since it wasn’t clear what exactly was said and who caused the confusion, it wasn’t enough to serve as a culminating incident justifying dismissal, said the adjudicator. With no clear evidence of serious misconduct, there wasn’t sufficient cause for dismissal.
Although the adjudicator found Matthews was unjustly dismissed, he declined to reinstate Matthews to his position, pointing to Matthews’ disciplinary history and the fact that he was on a last-chance agreement after Absolute Charters had seriously considered termination already. In addition, Matthews had spoken disrespectfully about his direct supervisor and indicated negative views of the company. This was not a viable employment relationship, the adjudicator said.
Instead of reinstatement, the adjudicator ordered Absolute Charters to pay Matthews compensation for six months’ notice, equal to $12,367.60.
For more information, see:
• Matthews and Absolute Charters Inc., Re, 2019 CarswellNat 1332 (Can. Lab. Code Adj.).
