A poor safety record disqualified the grievor from driving a transit vehicle, but it did not justify termination, the arbitrator found. He remained a dutiful and responsible employee.
A streetcar operator was fired after being involved in numerous collisions.
K.C. was hired by a municipal transit authority in 2009. He undertook 26 days of training and began driving streetcars in June 2009.
Between June 2009 and January 2011, K.C. was involved in four collisions where he was deemed to be at fault. There were also two switching incidents for which he was disciplined, one instance where he was found to be driving with a suspended licence, and seven non-preventable accidents.
At about 8:15 a.m. on Jan. 7, 2011, K.C. was driving eastbound. He was on his second run of the day. There had been light snow and the streets were slushy.
Up ahead, K.C. noticed a van in his path on the other side of the overpass waiting to turn north onto the highway below.
K.C. pushed the button to deploy sand from the streetcar’s hoppers onto the tracks to assist with braking as he had been trained to do. However, as he was still closing too fast on the van, K.C. next applied the streetcar’s track brakes and finally the emergency brake.
There was a crash. No passengers on the streetcar were injured. However, the driver of the van sustained a neck injury and there was moderate damage to the rear of his vehicle.
Careless driving
Police at the scene charged K.C. with careless driving under the Ontario Highway Traffic Act.
An inspection of the streetcar showed that all its braking and safety features were functioning properly. In addition, records indicated the vehicle had passed its 50-point monthly inspection three days before the accident.
K.C. attended a disciplinary meeting three days later. In response to the union’s assertion that brake failure was implicated in the crash, K.C. was informed the post-accident inspection revealed no problems with the streetcar. K.C. was suspended.
Three days later, K.C. was fired. The union grieved.
The employer said the termination was justified. K.C.’s record showed he was not capable of driving safely despite extensive training and the focused, post-accident retraining he received following the numerous accidents he had been involved in.
The employer bore the burden of a significant duty of care with regard to the safety of the public and it was required to exercise reasonable care. K.C.’s driving record established he was a liability to the employer and a risk to the public. The employer said it could not allow K.C. to continue driving.
The union said termination was not appropriate in the circumstances. While the union acknowledged K.C.’s record was not particularly good, it noted that — except for the latest accident and one of the switching incidents — all of the marks against K.C. happened while he was on probation. The union also said the incidents on record where K.C. was not at fault should not be counted against him.
The Arbitrator agreed the non-culpable incidents should not be counted against K.C. But, that didn’t matter.
Prior discipline counts
K.C. was not shielded in any way from the culpable incidents that were on his record from his probationary period.
The Arbitrator rejected the union’s apparent assertion that by hiring K.C. after his probationary period, the employer had somehow excused or expunged his accumulated discipline up to that point.
“There is simply no basis either within the jurisprudence or under this collective agreement for that result. Passing probation does not expunge any prior discipline or inadequate work performance unless the parties have agreed to such a result and there is no such agreement in this instance.”
K.C.’s record did not bode well for his prospects as a streetcar driver, the Arbitrator said. The issue was not confined simply to considering the number of accidents K.C. had been involved in within a given period time, the Arbitrator said.
The question was whether or not K.C. could understand and assimilate the knowledge necessary to become a safe streetcar driver. The evidence said he could not.
“His errors have been repetitive, that is, they have been of the same nature involving gauging the distance required to bring the streetcar to a safe stop. This against a background of continual retraining and assessment of the knowledge and skill required of him to be a defensive and safe operator,” the Arbitrator said.
K.C. was a short-term employee and the mitigating factors asserted by the union did not have any merit.
On the other hand, the Arbitrator said there was no evidence of any problem with K.C.’s attitude, his work ethic or his attendance. There was nothing to suggest the employment relationship had been irreparably broken.
K.C. was ordered reinstated to a non-driving position.
Reference: Toronto Transit Commission and Amalgamated Transit Union, Local 113. Victor Solomatenko — Sole Arbitrator. Patricia Matusiak for the Employer. Carlo di Giovanni for the Union. June 18, 2012. 27 pp.
