Driver claimed he was set up by passenger’s false injury report but failed to accept responsibility for failing to follow procedure after sudden emergency stop
Employees who interact with the general public as part of their jobs can face difficulties at times, as it’s almost inevitable they will encounter someone who isn’t easy to deal with. In such circumstances, it can be hard for the employee to proceed without reacting negatively.
However, employees in such positions usually face a higher level of expectation to do their job and closely follow employer policies and procedures, as they are entrusted by the employer to act professionally and project a good image of the employer. And this expectation goes even higher if the employee’s position involves customer safety, such as a bus driver
British Columbia transit provider had just cause to dismiss a bus driver who didn’t drive safely when he became angry with rowdy passengers, an arbitrator has ruled.
Tim Welsman was a bus driver for Whistler Transit, a transit provider in the town of Whistler, B.C. Hired in 2001, he worked the late-night shift in which he often had passengers coming out of bars who were intoxicated and boisterous.
Welsman had two disciplinary suspensions on his record, for three and five days respectively, for sleeping in after unsuccessfully trying to change his shift to the day. He considered himself a good driver, though he had demerit points from a 2009 incident where a police vehicle pulled him over after he thought it was pulling over someone else. He felt the officer had set him up and shouldn’t have charged him with speeding or following too closely.
Welsman had also bumped a car illegally parked at a bus stop in December 2009, though he didn’t know until he saw a smudge mark on the bus at the next stop. He was charged with driving without reasonable consideration for other persons using the highway, which Welsman felt was unfair and “a bit extreme.”
In July 2011, Welsman was charged with speeding in his own vehicle and his license was suspended for one month. Whistler Transit gave him a two-month leave of absence and upon his return he was subject to a three-month probationary period in return for his promise to follow all employer policies and procedures.
Rowdy passengers on late-night run
Welsman was driving his bus route at 2:40 a.m. on Nov. 14, 2014, making his last run before returning to the transit centre. He had an empty bus until he arrived at a stop where several bars had just closed. One passenger tried to distract him while others got onboard the bus without paying, Many of them were intoxicated and acting rambunctious, going to the back of the bus. Welsman couldn’t see all the way to the back because there were some passengers standing in the aisle.
Three male passengers were near the front of the bus and one pressed the stop button as soon as the bus left, while the other two started hanging and swinging from the overhead railings. Welsman stopped the bus at the next stop, but no one got off. When he pulled away, the same passenger pressed the stop button again but failed to get off at the next stop. Some of the other passengers yelled at Welsman to get the bus moving.
As Welsman pulled away from the second stop, someone pushed the stop button again. Welsman was becoming annoyed with this as well as the comments from other passengers. At the next stop, he got off the bus to smoke a cigarette and cool off. Some of the passengers said they were annoyed he was taking a break.
At the next stop, several passengers got off and the two who had been swinging on the railings used the extra space to do it even more. Welsman could now see to the back of the bus and, when he saw passengers preparing to hang from the hand straps, he made an emergency stop. Several passengers were thrown around and some out of their seats.
Welsman turned and announced to the bus, “Sit down and hold on. The first two rules of bus riding.” He saw one passenger getting up from his hands and knees and several passengers started yelling at him. A few came up to him expressed their displeasure face-to-face.
Though it was Whistler Transit policy for a driver to walk through a bus after an emergency stop to check for any passenger injuries, Welsman instead did a visual inspection from his seat and didn’t see anyone hurt, nor did anyone inform him of any injuries. The passenger who was on the floor came forward and told him he wasn’t hurt, so Welsman continued on the route, with some passengers angry and making derisive comments.
The group of passengers who were causing the most trouble eventually got off at a stop, making threats, swearing, and spitting at the bus. Welsman felt threatened, but two passengers — including the one who had fallen — shielded him.
Welsman completed his run, returned to the transit centre, inspected the bus, and went home without filing an incident report since he felt there were no injuries and it was a typical night of drunken revelers.
Later that morning, a passenger from Welsman’s bus showed up at the transit centre to inquire about his cellphone, which he thought he had lost on the bus. He spoke to a dispatcher and told her Welsman had slammed on the brakes during the ride, sending many passengers sprawling. He said someone landed on his leg and another passenger was momentarily unconscious. After he got off the bus, he felt pain in his knee and had no strength in it. He went to the hospital and was diagnosed with a torn medial collateral ligament.
Driver denied anyone was injured after emergency stop
The service delivery manager was told of the passenger’s report and called Welsman to complete an incident report. Welsman faxed a report that said people were hanging upside down, spitting, and swearing on the bus, so he performed an emergency stop. Welsman said people lurched forward and he told them the rule for bus riding safety was to sit down and hold on. Welsman also said in his report that three passengers approached him in an aggressive way but two other passengers blocked them. He concluded by saying he was unaware anyone was “allegedly hurt.”
The manager was concerned because emergency stops were to be used only to avoid a collision, due to the risk of harm to passengers. Drivers were also required to walk the length of the bus after such a stop to find out if anyone was injured, and complete and incident report at the end of the shift. In addition, a proper emergency stop should involve pulling over and braking smoothly.
Welsman came to work that day but was sent home pending a investigation into the incident. At the investigatory interview, Welsman described the events and said he had hit the brake harder than he intended, but no one was injured. He was surprised there was an investigation and thought he was “being hung out to dry” because of the disgruntled passenger’s report.
The manager determined Welsman had made the emergency stop to punish, not protect, certain passengers on the bus without regard for other passengers. Welsman didn’t accept responsibility for his actions and he didn’t follow correct procedure during and after the stop. Whistler Transit terminated Welsman’s employment on Nov. 21, 2014, based on these factors and his previous disciplinary record.
Welsman challenged the dismissal, denying there were any injuries on the bus. He said the passenger who reported the injury didn’t seem to be injured at the time and probably injured himself playing rugby, one of the passenger’s recreational activities. He also maintained his previous discipline was unfair.
The arbitrator found late-night bus runs after the bars close in Whistler could be expected to be a “gong show” with raucous passengers, and the public depended on bus drivers to demonstrate “skill, judgment, common sense and detachment…to provide safe passage.” These situations were discussed at driver health and safety meetings and Whistler Transit had its established policies and procedures.
The arbitrator also found there was no reason for the injured passenger to lie about his knee injury or what happened on the bus. His account of the incident was credible and Welsman’s argument that he could have been injured elsewhere and decided to file a false report was not.
The arbitrator found Welsman showed “a pattern of escalating actions” during the bus run, starting with extended stops and his smoke break, knowing it would provoke some of the passengers. It culminated in “an emergency stop with reckless disregard to the consequences of the safety of all passengers in his care,” said the arbitrator.
Welsman’s instances of previous discipline were irrelevant to the latest incident, other than to illustrate his unwillingness to acknowledge his misconduct, which he continued in the investigation into the emergency stop incident and his attempt to paint himself as a victim and the injured passenger as someone trying to falsely accuse him, said the arbitrator.
Welsman’s misconduct was serious and his failure to accept responsibility for it made it unlikely he wouldn’t act similarly in the future, said the arbitrator. The dismissal was upheld.
For more information see:• Whistler Transit Ltd. and Unifor, Local 114, Re, 2015 CarswellBC 1387 (B.C. Arb.).