Employees who snooze don’t always lose

Furor over sleeping Toronto transit employee a reminder there are many factors to consider before firing for cause

Stuart Rudner

A controversial catnap

When a fare collector for the Toronto Transit Commission (TTC) was photographed asleep in his booth by a transit rider on Jan. 9, 2010, it lit a fire of negative public opinion fuelled by rising fares and poor service. After photos of another employee sleeping on the job, a bus driver taking an unscheduled seven-minute break and another employee smoking at a station where smoking was prohibited, many wondered if there was anything TTC employees could do to get fired.

The TTC said it had issued discipline where necessary in the cases and notified its employees it would not accept these types of behaviour. But should they have been fired rather than disciplined? The controversy reminds employers that firing someone for cause is usually pretty difficult. Employment lawyer Stuart Rudner looks at the case of the sleeping fare collector and uses it to revisit the key elements of just cause for dismissal.

By now, Torontonians and many Canadians elsewhere are familiar with George Robitaille, otherwise known as “the snoozing TTC collector” or something along those lines. The incident, in which a transit rider observed a fare collector fast asleep in his booth for several minutes and took pictures of him sleeping in his chair, made headlines and angered many Toronto Transit Commission (TTC) riders and other members of the public. Subsequently, other photos surfaced showing other TTC employees caught sleeping on the job.

The public condemnation was swift and unequivocal. There was no shortage of calls for Robitaille to be fired, along with demands for a revamping of the TTC, particularly in light of the fact the head of the TTC had very recently acknowledged deficiencies in customer service. In an apparent attempt to divert attention and blame, the union representing TTC employees questioned the motives of the picture taker, suggesting the failure to knock on the booth or otherwise attempt to ensure the sleeping collector was all right was the truly shocking and offensive aspect of the story. Since then, Robitaille has publicly apologized and has gone on radio where he defended his actions — or inaction — in a somewhat less apologetic manner.

As the dust settles on this matter, it is a prime opportunity to consider the incident in the context of Canadian employment law. Robitaille remains an employee of the TTC. Whether or not he was disciplined, and to what extent, is not publicly known. However, many commentators have started to ask what someone has to do in order to get fired in Canada, or have used the incident to support criticism that workers, particularly those protected by a union, cannot be fired no matter what they do.

The reality, as I have spoken and written about repeatedly, is that employees can be dismissed for cause, and therefore without notice or severance, when their misconduct or performance is so egregious that the employment relationship has been irreparably harmed. In such circumstances, our courts and arbitrators will find just cause for dismissal existed and uphold a termination on that basis.

Sleeping employee blamed illnesses, medication

In Robitaille’s comments during a radio interview on January 25, 2010, he offered many explanations — or excuses, some critics might say — for his sleeping on the job. He mentioned his lengthy career with the TTC, an apparent multitude of illnesses including the possibility of sleep apnea — for which he is apparently now being tested — a lengthy list of medications that he is currently taking, and the fact that, leading up to the incident, he had worked for 30 consecutive days. One can only wonder how a unionized employee in Canada could be forced to work 30 days in a row. The only other explanation would be that he volunteered to do so, which would seem particularly ill-advised if he in fact suffers from a multitude of illnesses, is taking several different forms of medication and suspects he may suffer from sleep apnea.

During and after the radio interview, I heard many people snickering about the explanations and essentially suggesting they were irrelevant and he should be fired for his behaviour.

Employers must look at the whole picture in determining just cause

Although many may be sceptical of the explanations offered by Robitaille, this situation is a good reminder that in any situation where an employee engages in misconduct such as sleeping on the job, the employer must take a contextual approach in assessing whether just cause for dismissal exists. The contextual approach involves considering not only the misconduct in question, but the entirety of the employment relationship. This would include the length of the employment relationship, the nature of the employee’s position and duties, any prior discipline and any other contextual factors relating either to the relationship or the misconduct in question. The misconduct cannot be considered in isolation. It is only once all of the relevant factors have been considered that an employer, or a court, can determine whether the relationship has been irreparably harmed by the misconduct.

When faced with apparent misconduct by an employee, it is incumbent upon an employer to conduct an appropriate investigation. In assessing whether the employment relationship has been irreparably harmed, courts and arbitrators will often consider the employee’s behaviour during the course of the investigation. In many cases, this can be the difference between a finding of just cause and a finding that dismissal without notice was excessive. An apologetic, dishonest employee is less likely to be given a second chance than one who admits to wrongdoing and offers suitable apologies and assurances that it will not happen again.

The ‘capital punishment of employment law’

The contextual approach is designed to allow for discretion and avoid hard and fast rules when the potential outcome is summary dismissal, which is dismissal without notice, pay in lieu or severance. Summary dismissal has been referred to by some judges as “the capital punishment of employment law,” so it is not surprising courts may be reluctant to approve it in ambiguous circumstances.

Because a contextual approach is required, the misconduct in question will not be the only factor in determining whether summary dismissal is appropriate. For that reason, it is entirely possible for two employees to be guilty of the exact same misconduct, but with different penalties. For example, a long-term employee with a clean disciplinary record will typically be given more leeway than a recent hire that has already been in trouble.

Regardless of what ultimately happens to Robitaille, or how the public feels about this incident, it is a useful reminder that employers should not leap to judgment upon learning of misconduct on the part of an employee. No matter how egregious the conduct appears to be, it is crucial for employers to engage in a fair and thorough investigation and consider all of the contextual factors before deciding whether summary dismissal is warranted. I regularly monitor just cause cases throughout the country and can comfortably say courts and arbitrators will uphold summary dismissal in appropriate circumstances. However, the onus will be on the employer to justify the decision.

Stuart Rudner is a partner in Miller Thomson LLP’s Labour and Employment Group in Toronto. He can be reached at (416) 595-8672 or srudner @millerthomson.com.

TTCemployees’ misconduct caught on film

Riders on the Toronto transit system have recently recorded with cellphone cameras TTC employees doing the following:

•On Jan. 9, 2010, a fare collector was sleeping in his booth at the entrance to the a station. The employee later told the media he he was on heart medication, had worked 30 days in a row and may suffer from sleep apnea.
•In mid-January, another fare collector was seen sleeping in his booth.
•On Jan. 29, a bus passenger recorded a driver taking a seven-minute break in a donut shop while the bus sat idling with passengers. Another passenger said on camera the driver regularly took the break. The union said the driver had been suspended pending an investigation.
•In early February, rider took a photograph of a TTC employee smoking beside a streetcar parked at a station. TTC by-laws prohibit smoking on TTC property.
•A TTC employer was filmed through an office window watching a DVD while on the job.

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