B.C. worker driven to leave

Unfair investigation and allegations of cause lead to $45,000 in unjust dismissal and aggravated damages for mentally ill worker

B.C. worker driven to leave
Credit: Mike Flippo Shuttershock

BACKGROUND

It can be difficult for an employer to establish just cause, unless an employee’s misconduct or poor performance is blatant. It’s even more difficult if the worker has a medical condition supported by documentation that is related to what the employer is using as cause for dismissal.

A British Columbia company must pay more than $45,000 to a mentally ill employee it treated poorly during an investigation into alleged misconduct and then dismissed.

The worker was a truck driver for Taiko Trucking, a Calgary-based trucking company, hauling loads of explosives for the mining industry in semi-trailer trucks. As the trips were to destinations in the north, there were long hours of driving, and each load was taken by a team of two drivers who split the driving duties so the load was continuously moving to its destination, other than short breaks for fuel and food.

The worker was hired in February 2015 by another trucking company that was contracted to do long-term team driving. A couple of months later, after that company stopped doing business with Taiko, the worker accepted a job offer from Taiko, which soon assigned him to drive loads of explosives to the Brucejack Gold Mine in northern British Columbia. He had a female driving partner with whom he got along well initially, but by November 2016, their relationship had started to deteriorate. The worker didn’t like his partner’s driving and didn’t want her to drive into or out of the mine site, while his partner complained that she never had the opportunity to do so. The worker also complained that his partner yelled and screamed at him.

Taiko’s general manager spoke to both of them about their behaviour, but no discipline was issued. He decided to take both of them out for supper in Calgary on Nov. 15, 2016 to try to mend the drivers’ relationship. During the dinner, the worker explained that he was concerned about the safety of his partner’s driving habits and said she was “directionally dyslexic.” The discussion escalated and the partner left the restaurant, saying the worker was bullying her and he was trying to control her.

The worker told the general manager that his partner had made unwanted sexual advances toward him, including climbing on top of him when he was sleeping. He said he woke up and threw her off, but he didn’t report the incident at the time because he felt guilty as he was married. His driving partner denied the accusation, and they ultimately agreed that the partner would drive the empty truck out of the mine on the next trip before trying to drive in with a full load.

Things were better between the two drivers for about one month, but then they had had enough of each other and after a few more months told the general manager they didn’t want to drive together any longer. The worker told the general manager that he had been “scared for his life” when his partner drove into the mine.

The worker was paired with another driver shortly thereafter. The new partner told the general manager he was concerned about the worker smoking while driving, but he felt he was learning a lot from him. Although smoking was prohibited in the truck, Taiko didn’t issue any discipline.

Over the next month, the smoking complaints increased and the new partner also complained that the worker was too impatient when he made mistakes. The worker made his own complaints about his new partner’s safety practices and the quality of his driving. Their working relationship deteriorated and the new partner quit his job, claiming the worker was bullying him.

A new partner was hired to work with the worker. The new driver was inexperienced, but Taiko hoped he would learn from the worker. However, Taiko soon learned that the worker didn’t get along with this partner, either — the new partner said the worker would sometimes “lose it” and get upset about little things.

Driver leaves truck and partner due to stress

On Feb. 19, 2017, the worker and his new partner were hauling a load of explosive material to the Brucejack mine. The new partner was driving and the worker was sleeping in the back of the cab, but when the worker woke up and looked, he saw his partner watching his phone while driving. According to the worker, he felt his safety was at risk and he started to shake.

The worker claimed he didn’t want to start a confrontation, so he called someone he knew nearby to take him to a doctor. He told his partner to park the trailer at a gas station in Prince George, B.C., fuelled up the truck, and said he would be back after seeing a doctor. The doctor provided him with a note saying he was shouldn’t drive for five days.

The worker returned to the truck, told his partner the doctor told him not to be at work, took some personal belongings, and left. The new partner called the general manager to say the worker had gone home and took the fuel cards with him so the truck couldn’t be refuelled again. The general manager tried to call the worker on his cellphone, but he was unsuccessful, so he texted him. The worker replied by text that he had a doctor’s note and was unable to drive for five days due to stress and sent a picture of the doctor’s note. The worker explained that he needed to see his own doctor to be re-evaluated.

The general manager couldn’t believe that the worker had abandoned the load of explosives on the road near a populated area and left the new partner by himself with it. It also left Taiko in a bind as the partner only had a few driving hours left and wasn’t able to get the load to the mine — since it was explosives, the load had to be monitored constantly. The worker’s partner was able to move the truck to a safe haven so he could get some rest.

The worker texted the general manager that he had seen his new partner watching videos on his cellphone while he was driving and this had stressed him out. He sent a video of his partner’s cellphone in the cupholder playing a video with the partner glancing down at his phone several times.

On Feb. 23, the worker saw his personal physician and obtained a note that stated that he would be unable to work until April 18 and would be reassessed closer to that date “to determine if that date works for him.”

Taiko launched an investigation into the incident, which it believed involved the worker abandoning a load of explosives, depriving himself of sleep required by law so he could drive, and interfering with “the efforts of the co-driver to continue by absconding with both sets of fuel cards.” The company also considered past instances of “horribly malicious things you have stated broadly about other people.” The company placed a “hold” on the worker’s pay and advised Taiko employees to avoid communication with him until the investigation was completed.

During the investigation, Taiko tried to get the worker to make a statement in writing about the Feb. 19 incident, but the worker refused, saying he couldn’t relive the circumstances without becoming upset. The company contacted the worker by phone, but verbal discussion of the incident also caused problems for the worker, so the company stopped calling.

On April 26, Taiko terminated the worker’s employment for violating company policy by abandoning a load and team driver without cause, failing to observe and comply with company policies, not co-operating with the investigation and failing to comply with the federal Explosives Act by smoking too close to explosives while transporting them — the latter being a criminal offence.

The worker claimed he was unjustly dismissed during his medical leave — without any progressive levels of discipline — and was constructively dismissed by Taiko’s failure to act on his sexual assault allegation and the creation of an unsafe workplace when his last partner drove dangerously.

Taiko argued that the worker terminated his employment when he abandoned the load and his partner of Feb. 19.

Legitimate mental health issues

The adjudicator found that Taiko should have taken the doctor’s note into consideration when it determined that the worker abandoned the load and his partner. The note stated that the worker was unable to work for five days and the worker explained that he had gone to see a doctor. This amounted to “a disregard for mental illness as ‘illness’ for which medical advice can be necessary,” said the adjudicator, adding that Taiko probably wouldn’t have taken the same position if the worker had suffered a physical injury requiring medical attention.

The adjudicator also found that Taiko wasn’t fair when it pressed the worker for a written statement about the incident even though it was clear he was having mental health issues and told them he couldn’t do it. There was no reason the information the worker texted to the general manager couldn’t be sufficient, as it included a picture of the doctor’s note and videos of the partner’s actions that contributed to the worker’s stress, said the adjudicator.

In addition, the adjudicator didn’t make enough of an effort to contact the worker before his dismissal. The worker couldn’t write a written statement or talk on the phone, but the company didn’t try sending him a letter that outlined what it needed — or some other method of communication. It also didn’t make any efforts to obtain further medical information, which it should have if it doubted the illness, said the adjudicator.

“I do not find that [the worker] failed to co-operate in the investigation; rather I find that Taiko did not conduct an appropriate investigation, nor did Taiko use the information [the worker] had already provided to ‘investigate’ significant and serious misconduct of another driver, or communicate appropriately with a mentally ill employee if it determined it required further information regarding his absence,” the adjudicator said. 

The adjudicator determined that the worker left the load and his partner because of a medical condition and Taiko unjustly used it as grounds for dismissal. It also found that Taiko constructively dismissed the worker when it:

• Failed to address the worker’s complaints of sexual harassment and safety with his partners;

• Placed a hold on his pay after the Feb. 19 incident;

• Made no effort to determine if the worker could be reintegrated into the workplace;

• Suspended the worker with no evidence to justify it.

Taiko was ordered to pay the worker 21 weeks’ pay, from February 2017 to July 2017, when he was able to work again, plus $5,000 in aggravated damages for the company’s “high-handed and oppressive” conduct in its poor handling of a mentally ill employee. The total damages amounted to $45,990 minus employment insurance sick leave benefits.

For more information, see: 

Thomas and Taiko Trucking, Inc., Re, 2019 CarswellNat 5874 (Can. Lab. Code Adj.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.smith@keymedia.com, or visit www.employmentlawtoday.com for more information.

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