'The union and the employer agreed that it was a serious incident,' says lawyer
“If an employee intentionally disregards safety provisions that are put in place by the company, something strong is warranted in terms of discipline to illustrate that it won't be tolerated by the employer and an intentional decision to possibly cause harm or to scare an employee should be taken seriously.”
So says Jackie Laviolette, an employment and labour lawyer at Matthews Dinsdale in Calgary, after an Alberta arbitrator upheld the termination of a bus driver who intentionally hit the brake and caused injuries to colleagues on his bus.
Diversified Transportation is a busing company specializing in industrial transportation for the oil and gas industry in Northern Alberta.
In securing contracts with client companies, Diversified had to provide executive summaries that included safety statistics. If the accident statistics were too high, Diversified could lose work.
Diversified made safety a priority with a Health Safety and Environment policy that was part of employee orientation and reviewed with employees annually. It also needed to maintain public perception that it was a safe company to work for and to hire.
The worker was hired as a bus driver in 2019.
An Alberta arbitrator upheld the dismissal of a worker who intentionally committed a safety infraction without any regrets.
Standing passengers
On Nov. 4, 2021, the worker was assigned to be the designated driver of a bus carrying other drivers from a worksite to a company yard. When they were ready to go, two passengers were standing. The worker started driving and asked them to sit down a couple of times, but they didn’t.
After asking a third time, the worker hit the brake hard, which caused a colleague’s head to whip back. After a few minutes, the colleague began feeling nauseated and asked the worker to stop the bus. He exited the bus and vomited. The worker called his supervisor and the passengers were transferred to another bus.
After about 30 minutes, the colleague got back on the worker’s bus. When they arrived at the yard, the worker helped him into the office and the supervisor asked for a statement.
Diversified obtained statements from six employees who were on the bus at the time of the incident along with the worker. The worker said that two passengers were standing when he started driving, so he applied “a little hard break [sic] to scare that guy.” The other passengers reported that the worker did a hard brake and sudden stop, causing one to hit her head on the seat in front of her and another to hit his shoulder, causing minor injuries.
The supervisor called the worker later in the week, but he didn’t advise that the worker was entitled to union representation because the purpose of the call was to clarify the worker’s statement, given that the worker had “broken English.”
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Denied ‘hard brake’
According to the worker, when the two standing passengers didn’t sit down after he asked them three times, he released the parking brake and let the bus roll forward. He said the bus slowly rolled about two feet and he touched the brakes, which were sensitive – although the injured colleague had said they had travelled about 250 feet at 20 kilometres per hour. The standing passengers then took their seats and he continued driving. He denied doing a “hard brake” or that the bus jerked.
A short time later, the injured colleague’s pain and vomiting became unbearable and he went to the hospital. He was referred for physiotherapy for his head and neck and could only perform light duties for three months before being cleared for regular duties. He received workers’ compensation benefits for the period on modified duties.
Five days after the incident, the worker texted the colleague – who was a union shop steward - an apology.
Management considered that the worker’s actions were on purpose with “wilful neglect of other employees’ safety,” causing injury to at least three employees. The vice-president of employee transportation didn’t know whether the worker had any prior discipline – the worker received an administrative suspension for unsafe driving in February 2020 - but he decided that the worker’s misconduct warranted dismissal.
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Employment terminated
The worker was terminated at a meeting on Nov. 9 at which the company arranged for union representation.
The union grieved, arguing that termination was excessive. It said that the worker had a clean disciplinary record – there was a 12-month sunset clause in the collective agreement – and the worker had been upfront about the incident, which it characterized as a momentary lapse of judgment. It also argued that the worker wasn’t provided with union representation at the investigation meetings as required by the collective agreement, since there was a potential for discipline.
Diversified put itself in a good position by taking the matter seriously and getting statements from those involved immediately, says Laviolette.
“I think what was also favourable to the employer is the union and the employer agreed that it was a serious incident and it was really only a question of whether the termination was excessive in the circumstances,” she says. “It wasn't actually a case of whether there was just cause to do something, it was that second question of whether termination was too harsh, and I think when you have agreement with the union that something happened for which you can discipline, you're already 50 per cent to the races.”
The arbitrator found that when the supervisor took the worker’s statement the night of the incident, this didn’t constitute a disciplinary meeting requiring a union representative. The same applied to the discussion clarifying the worker’s statement, said the arbitrator. Either way, the specific language in the collective agreement entitled the worker to union representation “at his or her request” and the worker didn’t make such a request, the arbitrator added.
“It’s really interesting that in getting the witness statements from the seven employees, the arbitrator found that they didn't require union representation to do that,” says Laviolette. “I think that's a powerful tool for the employer to be able to gather the information at the time the event happened - it was dependent on the wording of this collective agreement specifically, but it was pretty broad.”
The arbitrator noted that Diversified arranged for a union representative to be present at the termination meeting, so there was no violation of the collective agreement.
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Premeditated decision
The arbitrator disagreed with the union’s characterization of the worker’s actions as a momentary lapse of judgement, finding that the worker made a conscious decision to perform a hard brake to scare the passengers who were standing up – the worker admitted as much in his statement – rather than considering other options such as contacting his supervisor or waiting until everyone sat down. The decision was “clearly reckless as to the potential risks and in this, he exercised exceedingly poor judgment,” the arbitrator said.
“It was very powerful evidence that the [worker] made a conscious decision to scare the passengers into sitting down and put safety at risk in order to achieve his objective,” says Laviolette. “And the worker having short service and the fact that this was an intentional action that did actually result in injury to someone, were two factors that led to overcoming progressive discipline and moving towards termination,” says Laviolette.
“I think also, it can't be denied it was a safety sensitive environment, so that the threshold is much lower,” she adds.
Although the worker said the bus had only moved forward slowly and he lightly applied the brake, the evidence showed that it was a hard stop and the worker shouldn’t have allowed the bus to move at all while passengers were still standing, said the arbitrator.
The arbitrator determined that termination of employment was appropriate, as the worker was aware of the importance of workplace safety and his actions were intentional. His statements also tried to justify and deflect his conduct, so the employment relationship was damaged beyond repair, said the arbitrator in dismissing the grievance.
See Diversified Transportation Ltd. v. General Teamsters, Local Union No. 362, 2023 CanLII 32700.
