The grievor, a bus driver, had consumed alcohol within eight hours of going on duty. While the actual time he was to drive was in doubt, he remained responsible for his vehicle, the arbitrator concluded. His long service supported reducing his termination to a suspension.
An intercity coach driver was fired for violating the company’s Alcohol and Drug Policy when he was discovered drinking a beer before signing on for duty.
J.G. operated a coach for a bus line. He worked out of the city of Barrie as a spare, picking up assignments and filling in on routes as assigned. He was also a union vice-president. J.G. was well regarded and had about 25 years of service when he was fired on June 21, 2011.
On June 2, 2011, J.G. picked up an early morning run into Toronto where he had union business scheduled for the day. He dropped off his passengers at the terminal and then drove his coach to the parcel terminal where he had permission to park.
Off duty, J.G. then participated in union/management meetings for the day.
At about 12:30 p.m., the company dispatcher left a message on J.G.’s cell phone asking him if he was available to report at 5:00 am the next day to do the same Barrie to Toronto run leaving at 6:00 am.
At about 4:00 p.m., J.G. returned the call. While the dispatcher testified that J.G. unequivocally accepted the assignment, J.G. said that his acceptance was qualified. J.G. said that the told the dispatcher that he would call later to confirm the booking.
In view of the fact that the coach J.D. drove in the morning was temporarily parked at the parcel terminal, the expectation was that he would “deadhead” — or drive the coach without passengers — back to Barrie that evening. Another option for J.G.’s return to Barrie would be to “deadhead on the cushions,” or ride as a passenger on another bus.
After his meetings, J.G. met a couple of fellow union officers at a restaurant at 6:00 p.m. Fifteen minutes earlier a manager had conferred with another manager about the fact that J.G.’s bus was still parked at the parcel terminal.
Acting on information that the some union officers were meeting at a nearby restaurant for a drink, the managers looked for J.G.
Not in uniform
At 6:10 p.m., the managers found J.G. sitting with two other union officers at a table on a patio. There were three glasses of beer on the table. J.G. was not in uniform or wearing anything to identify him as a company driver.
J.G. was suspended from service on the spot.
Investigative meetings followed on June 14 and June 21. J.G. was terminated after the last meeting.
The union grieved.
The employer said that J.G. was in violation of the company’s drug and alcohol policy, which contained a provision prohibiting drivers from using alcohol eight hours before going on service.
The union argued that the termination was unwarranted. J.G. had done nothing wrong. He was not on duty. He was not in uniform and he had made no decision about how or when he intended to return to Barrie.
It was true, the Arbitrator said, that J.G. was not on duty while he was in the restaurant. Also, by virtue of the fact that he was suspended from duty on the spot, neither was J.G. in violation of the proscription against consuming alcohol eight hours before scheduled duty.
However, these instances of technical compliance were distractions from the real issue, the Arbitrator said. The reasonable expectation of the employer in the circumstances was that J.G. would return his bus to Barrie in time to report for work at 5:00 a.m. Yet at 6:15 he was observed in a restaurant in Toronto drinking a beer.
“The grievor has taken advantage of the latitude and trust given to him to construct a defence to the discipline imposed upon him,” the Arbitrator said.
Acted irresponsibly
J.G. had options, but there was no evidence that he had made any alternative arrangements either to sleep over in Toronto or to have someone pick up his bus at the parcel terminal.
“The grievor was not in the restaurant drinking beer because he had some technical understanding that the bus he drove from Barrie and parked at the parcel terminal was not his responsibility. It was his responsibility, he understood that, and he was acting irresponsibly by drinking alcohol.”
Both the union and J.G. failed to acknowledge that J.G. had acted irresponsibly and made an error that may have had serious consequences, the Arbitrator said.
“I find this failure to be available to drive the bus he was responsible for or to seek permission to alter his plans before he engaged in conduct which made the performance of those undertakings impossible, to be a breach of trust and conduct warranting discipline,” the Arbitrator said.
Given J.G.’s 24 years of exemplary service, termination was not appropriate. The termination was set aside and J.G. was awarded a five-day suspension instead.
However, in view of J.G.’s refusal to acknowledge any wrongdoing, the Arbitrator ruled that J.G. should receive no compensation for losses incurred since his termination.
