Failure to remain at scene or report accident not grounds for suspension; Second incident not enough for discipline
An Ontario trucking company jumped to termination of a driver too fast following a couple of accidents and a speeding ticket, an arbitrator has found.
Charles Cartwright was a truck driver for K-Town Delivery, a trucking company operating out of Kingston, Ont. Cartwright was employed with K-Town Delivery for about four years and received two written warnings in August and October 2018 about his poor attendance record.
K-Town delivery had rules for drivers to follow, including “at fault” accidents subject to discipline “ranging from warning to dismissal;” police charges while on duty subject to suspension; and failing to complete an accident report would lead to dismissal. Speeding while on duty was also subject to dismissal, even on a first offence, according to the rules. These rules were strictly enforced, as any traffic infractions or accidents involving the company’s drivers affected the company’s commercial vehicle operators registration (CVOR) with the Ontario Ministry of Transporation.
On Nov. 3, 2018 Cartwright was pulling an empty trailer from Montreal to K-Town Delivery’s yard in Kingston on the 401 expressway. According to Cartwright, he swerved the truck to avoid a deer and rubbed against the guardrail, causing damage to the truck. He called an off-duty manager — he didn’t have the number of his current manager — to report the accident and said the truck was drivable and no-one else was involved. The off-duty manager said if no-one else was involved he didn’t need to call the police and he could drive the truck back, but he should call his on-duty manager.
Cartwright left a message for his manager. When the manager called back, he was already on the road. The manager told Cartwright to complete an accident report, but Cartwright said there were no accident report forms in the truck. A subsequent check of the truck found the front hub was severely damaged and the front suspension broken off. The company determined the truck had been unsafe to drive and should have been towed.
Three days later, Cartwright was caught by police and charged with speeding, going 103 kilometres per hour in an 80 km/h construction zone. Construction workers were present, so the infraction cost K-Town Delivery double points on its CVOR. When Cartwright arrived at the yard, he also didn’t chock the wheels on the trailer he dropped off.
The next day, the company suspended Cartwright for two weeks. The suspension letter cited the main reasons for suspension were leaving the scene of an accident without reporting it to police, driving a truck with damage rendering it unsafe to drive and the speeding charge. The letter also noted that Cartwright’s at-fault accident caused $20,000 in damage to the truck — though an outside mechanic later testified it was closer to $3,000 — and his manager had found accident report forms in the truck, contrary to what Cartwright had said. In addition, his paperwork had not been handed in at the end of his shift, as per company policy, and his trip sheet didn’t include the empty trailer he had pulled from Montreal or his mileage. The company said Cartwright was unreliable and “a serious safety concern and that any further problems would be cause for immediate dismissal.”
On Dec. 12, 2018, Cartwright was making a delivery at a site with what he initially thought was a circular drive. However, he realized the entrance he had pulled into was actually a dead end with rock outcroppings, so he backed out. While doing so, he hit a rock and tore off a mud flap. He then turned the truck and trailer around and made the delivery at the proper entrance.
When Cartwright returned to K-Town Delivery, he completed a written report of the incident, as he was aware of his duty to report all incidents in the wake of his suspension.
The company sent a driver to the site where the incident took place, but the driver didn’t find any rock outcropping that Cartwright could have hit. The company decided it was more likely Cartwright wasn’t paying attention and hit the loading dock, as parking was challenging at the location. Taking into account Cartwright’s previous misconduct and suspension, K-Town Delivery decided to terminate his employment effective Dec. 13.
After the union grieved both the suspension and the dismissal, an arbitrator found that the discipline in both cases was inappropriate.
Managers didn’t direct employee to follow policy
The arbitrator found that Cartwright should not be culpable for leaving the scene of the accident without reporting it to police. Cartwright spoke to two managers following the accident and neither directed him to do so; nor did they query him on the extent of the damage to the truck. His only misconduct in this incident was telling the managers the damage wasn’t significant and driving it and not completing the accident report.
Since the most serious allegation of misconduct — not reporting the accident to police and leaving the scene — wasn’t proven, the suspension should be decreased to one week, said the arbitrator.
As for the incident involving the torn-off mud flap, the arbitrator found this was not even a disciplinary offence, let alone a culminating incident for termination. The company didn’t thoroughly investigate the incident and the damage was minimal.
“A damaged mud flap is more in the nature of the normal wear and tear on tractors flowing from the nature of the business itself,” said the arbitrator.
The arbitrator determined that K-Town Delivery was likely dissatisfied with Cartwright’s performance and attendance and used the damaged mud flap incident as a reason to terminate his employment. However, it didn’t reach the level of just cause.
The arbitrator ordered K-Town Delivery to reinstate Cartwright to his employment and compensate him for all lost wages and benefits from the date of his termination to his reinstatement, as well as compensation for one additional week of pay for the suspension reduction.
For more information see:
• K-Town Deliveries Inc. And USW, Local 343-16, Re (June 24, 2019), D. Randall-Arb. (Ont. Arb.).