Alberta arbitrator upholds termination of bus driver who ate rice while driving

An Alberta arbitrator has upheld the dismissal of a Calgary bus driver who was caught eating from a bowl while driving a bus.

The 52-year-old worker was hired by the City of Calgary to work as a transit operator with Calgary Transit in 2008. He worked as a “big bus” operator, driving standard-sized transit buses.

The worker was subject to rules for transit operators that banned distracted driving, including eating and drinking while behind the wheel of a bus. He also received the city’s transit operator manual, which stated that any violation of the rules could result in discipline up to and including termination.

In 2017, the worker was suspended for five days after a physical altercation with a passenger. This was the only active discipline on his record and was in accordance with the city’s progressive discipline process — but steps could be skipped if the misconduct was serious.

Shortly after 10 a.m. on Dec. 28, 2018, the city received a complaint from a customer who said that the worker had been driving a bus while eating from a bowl. The worker’s supervisor reviewed footage from an onboard surveillance camera that depicted the worker with a bowl on the steering wheel, a fork or spoon in his right hand, and his left hand resting on the steering wheel and holding the bowl while the bus was stopped and moving. At times, the worker had no hands on the wheel while the bus was moving.

Management interviewed the worker on Jan. 7, 2019, and the worker acknowledged that he had made a mistake and had breached the city’s policies. He explained that he had been hungry and started eating rice out of a bowl because he had been too busy to take a break to eat. He also recognized that the city’s policy was to allow operators to take a break if they needed to eat or use the washroom, but he said that it was difficult if he was running late.

The worker said he didn’t have any medical condition — although he had diabetes — and apologized, but the city considered distracted driving serious misconduct because it put the safety of the employee, passengers, and equipment at risk. Noting the five-day suspension on his record, the city terminated the worker’s employment on Jan. 15.

The union grieved the dismissal as excessive, noting that the worker apologized and his diabetes required him to eat when he needed to.

The arbitrator found that the worker’s conduct was a serious risk to safety, as he had little control of the bus when eating out of the bowl. Had something grabbed the wheels of the bus, such as a pothole or ridge in the pavement, the consequences could have been severe, the arbitrator said, adding that the conduct was “a deliberate act which constituted a reckless disregard for public safety.”

The arbitrator also found that the worker didn’t mention his diabetes in the investigation interview, so he couldn’t use that as a mitigating reason for eating behind the wheel. In addition, there was no evidence that his diabetes caused a lapse of judgment.

The arbitrator also felt the worker’s previous suspension for an altercation with a passenger was serious — and safety-related — and the last step in the progressive disciplinary process before termination. The worker should have known that he needed to “run absolutely clean” or his job would be at risk, the arbitrator said.

The arbitrator determined that the worker’s misconduct, when combined with his previous suspension, demonstrated that he was likely to repeat the same type of conduct and his failure to be completely forthcoming about his diabetes as a risk factor was a breach of trust. The termination was upheld.