Following a bad week behind the wheel, which included shredding the tires and damaging the rims on his truck by running over an exposed pipe, hitting a house and crushing a flower box, a municipal water truck driver was fired. The union grieved.
The employer said the termination was justified in view of the heightened vigilance towards safety adopted by the municipality in the wake of the recommendations of a Coroner’s Inquest that had examined two recent fatalities involving City vehicles.
The short period of time over which the incidents occurred set off red flags according to the Employer and the worker’s failure to remain at the scene of one of the accidents — minor though it was — aggravated the offence. The Employer said the worker had become a serious safety risk and in view of his relatively short tenure with the City, termination was reasonable.
D.D. began driving sewage and water trucks for the City part-time in 2001. He became full time one year later.
Two incidents in one day
In June 2005 D.D. received a written warning after he was allegedly observed speeding. In November 2005, he was suspended after two incidents in one day. During the morning of November 8, he ran over an exposed pipe causing some damage to his vehicle. During the afternoon of the same day, he took a sharp turn out of a driveway and crushed a garden box.
D.D. was to be suspended for 10 days for those incidents; however, on November 16, prior to the beginning of his suspension, D.D. was involved in another incident. On this occasion, trying to extricate his vehicle from a driveway where he was stuck, D.D. backed into a house causing minor damage to the exterior. He failed to report the damage immediately, later claiming that he intended make a report at the end of his shift. D.D. was terminated by letter November 17.
Before the Arbitrator, the Union argued that there was no “just cause” for discipline let alone either the suspension or the termination. D.D. may have committed some errors in judgment but his actions did not display willful or negligent misconduct. Even if discipline was warranted, the Employer did not properly apply progressive discipline. The simultaneous suspension and termination did not afford D.D. any opportunity to improve his performance.
The Arbitrator agreed. Though D.D.’s failure to immediately report his run-in with the house was an isolated breach of the accident reporting policy, there were no personal injuries and only minimal damage, and therefore it did not constitute a serious offence according to the collective agreement. D.D.’s three and one-half years of satisfactory service should have been taken into account as a mitigating factor, the Arbitrator said, and it wasn’t. Ultimately, all the incidents were relatively minor and reflected errors in judgment on D.D.’s part, the Arbitrator said.
Employer must be realistic
An Employer is entitled to expect a skilled and experienced driver to be mindful of his or her vehicle at all times and aware of the dangers associated with the driving conditions. “However,” the Arbitrator said, “the Employer must be realistic. It can hope for but cannot expect a standard of absolute perfection and no incidents whatsoever from its drivers over an extended period of time. If the Employer wished to impose a standard that three relatively minor accidents over a two-week period resulting in minimal property damage will result in dismissal, that standard should have been communicated to the Grievor and the Union.”
The Arbitrator said that the Employer’s conduct in terminating D.D. on the same day that it imposed a disciplinary suspension, deprived D.D. of the opportunity provided by the suspension, and the earlier warning, to improve his performance and thereby undermined the use of the suspension for the purposes of progressive discipline. “[I] conclude that the decision to terminate [D.D.’s] employment was somewhat hasty and disproportionate in relation to his actual performance and the resulting damage arising from the three incidents …” The grievance was allowed.
