The company vehicle the grievor was driving had a fogged windshield when it struck another vehicle. The arbitator reduced the penalty from termination to suspension because the grievor was contrite, had a clean record, and had not been subject to progressive discipline.
A worker was given a long suspension for culpable misconduct after his failure to properly defrost the windshield in a vehicle he was driving caused a crash.
M.M. worked as a lead hand at a residential home construction company. He had six years’ service and a clean disciplinary record when he was fired.
M.M. was driving a company van at the plant before 7 a.m. on Jan. 3, 2011. It was still dark, there was snow on the ground and the temperature was about minus seven degrees.
When he arrived at about 6:15 a.m., M.M. first safety checked the van and then started it. When the windshield fogged up, M.M. turned on the heat and defrosted as best he could with washer fluid.
M.M. then drove the short distance to the main plant building and shut the vehicle down while he consulted with his supervisor.
The windshield fogged up again when M.M. restarted the vehicle about 15 minutes later. Again he used washer fluid to defrost the windshield.
At about 6:50 a.m., M.M. was driving beside an outbuilding on the plant site when the windshield fogged up again. He kept driving while attempting to defog the windshield.
M.M. crashed the van into the back end of a parked trailer.
M.M. reported the accident and filled out a report. He was provided with another vehicle to continue his workday.
The next day he was fired.
The company told M.M. the crash represented a significant safety lapse that could have resulted in very serious injury or death.
Lack of judgment
The company’s view was that the accident was completely preventable and M.M.’s lack of judgment presented a risk to the company’s employees and assets.
The company reinstated M.M. on May 16, 2011 on a without prejudice basis. However, the company signaled that it intended to view the intervening four and-a-half months between M.M.’s termination and reinstatement as an unpaid suspension.
The union grieved.
The key question, the Arbitrator said, was whether or not M.M. had either made an error in judgment or was guilty of culpable misconduct.
He was guilty of culpable misconduct.
“[T]he primary cause of the accident was [M.M.’s] inexplicable decision to continue to drive the van while his visibility out the front windshield was fully obstructed.”
The Arbitrator agreed with the employer that the accident would not have occurred if M.M. had taken reasonable safety precautions.
The company said that in the circumstances, a four and-a-half month unpaid suspension was reasonable. The union argued for a three-day suspension.
Mitigating factors
The Arbitrator acknowledged M.M.’s misconduct had seriously compromised his own safety and the safety of his coworkers.
Nevertheless, there were mitigating factors in M.M.’s favour, the Arbitrator said.
“However, the foregoing considerations do not displace the application of progressive discipline to [M.M.], in these circumstances. He has been employed for about six years. He has a clean disciplinary record. He was candid in his evidence. He was genuinely contrite. [M.M.] unqualifiedly acknowledged his responsibility for what happened.”
M.M. was a good candidate for rehabilitation, the Arbitrator said.
“I am satisfied that he fully appreciates the gravity of his actions, and that they will not recur… Having regard to the full context of the misconduct, [M.M.’s] candid testimony, his unqualified acknowledgement of his responsibility for what happened, his genuine contrition, his years of employment, and his clean disciplinary record, I find that it is just and reasonable in all the circumstances to rescind the imposed suspension, and substitute a two-week suspension in its place.”
The grievance was allowed, in part.
