Denied access to U.S. came as a surprise to driver who had received a pardon for past convictions
This instalment of You Make the Call features a truck driver who lost his job after he was banned from crossing the border into the United States.
Celadon Canada was a shipping and warehousing company based in Kitchener, Ont., that operated tractor-trailer rigs. It had a “local fleet” of about 10 senior drivers, but the bulk of its business involved long-haul trucking between Canada and the U.S.
Because of the international nature of most of its work, Celadon required drivers to be eligible to cross the U.S. border and be willing to apply for a “FAST card,” a certificate which allowed drivers and their trucks to cross quickly.
In May 2008, Robert Power, 49, applied for a job with Celadon. He had been working for another trucking company with no problems crossing the border, though he didn’t have a FAST card. Power indicated he had no criminal convictions for which he hadn’t received a pardon and he was able to cross the border. A subsequent criminal record check revealed no convictions and Power was hired as a long-haul driver.
However, Power didn’t reveal that thirty years earlier, he had been convicted of multiple criminal offences. He didn’t think it was an issue because he had received a pardon in 1993 and he had no trouble crossing the border since. But he was concerned it could affect his application for a FAST card, so he told the person training him about it, but the trainer waved it off, he testified. This news never made it to management.
Power began making long-haul drives to the U.S. and, for the next eight months, he had no problems.
On Jan. 19, 2009, Power had an interview with U.S. Customs about his FAST card application, in which he disclosed his criminal convictions. He also provided proof of his pardon, but when the border officer found out one conviction was related to drugs, he barred Power from entering the U.S. until he was granted an exemption, which would take several months.
Power informed Celadon of the situation the next day. He requested reassignment to routes within Canada until things were resolved, but Celadon told him there were no positions available. Celadon would have to displace a senior driver to accommodate him on one of those routes.
Celadon said it would grant Power a personal leave of absence until he was able to enter the U.S., but Power felt this would prevent him from collecting employment insurance and he couldn’t afford to go without a paycheque for several months. Celadon gave him a letter of indefinite layoff effective immediately.
Power obtained an order from an employment standards inspector ordering Celadon to pay him two weeks’ pay in lieu of notice for dismissal, as stipulated under the Canada Labour Code. However, Celadon claimed the contract was frustrated through no fault of its own and Power was laid off because he couldn’t fulfill the duties for which he was hired.
You Make the Call
Could Celadon dismiss Power for cause due to frustration of contract?
OR
Was Power entitled to pay in lieu of notice?
If you said Power was entitled to pay in lieu of notice, you’re right. The board found Power was hired to do long-haul trucking to the U.S. and he was unable to perform a fundamental term of his employment contract. However, the barring of entry to the U.S. was unexpected and out of Power’s control, since he thought his pardon would have solved the problem. He had also been permitted into the U.S. previously and had no reason to think that would change.
The board also found Celadon made efforts to accommodate his situation by offering him a leave of absence instead of termination, which Power refused, and giving him a route within Canada would have been undue hardship because it would have displaced a senior driver.
