City bus driver misses his stop

Reporting late for work and unfit for work was second instance of discipline during probationary period

This instalment of You Make the Call features a bus driver who was fired during his probationary period.

The 52-year-old driver began work with the City of Saskatoon driving a city bus as part of the city’s transit system, on Feb. 9, 2009. He was required to serve as a probationary employee for nine months before becoming a regular full-time city employee, as stated in his employment agreement.

On June 9, 2009, the driver failed to properly secure the bus he was driving, resulting in the bus rolling onto the curb and hitting a transit sign. The driver was suspended for five days without pay and required to attend a refresher course, as the first step in its progressive discipline program. He was also warned that any other misconduct in the future would result in “an equally or more severe disciplinary sanction up to and including your dismissal.”

The driver was also a musician. When he took the job as a bus driver, he had decided to retire from the music scene, though he continued to play gigs outside working hours.

On the evening of Aug. 18, the driver and a friend played a gig. His performance ended at 10 p.m. and he stayed for awhile afterwards, drinking  two beers.

When he went to bed that night, the driver forgot to set his alarm. After he slept in, his roommate banged on his door and woke him up. He was late for work, so he didn’t shower or brush his teeth. He quickly combed his hair, used mouthwash, and went to work.

When the driver arrived at work, he swiped his access card but couldn’t get in. It was standard procedure that if an employee was more than 59 seconds late, his card would be rejected and he had to talk to a supervisor to get clearance to work, while his shift would be assigned to another driver.

The driver had never been late before and was uncertain of what to do, so he asked the timekeeper, who informed him he could go home or sign in. The driver was three minutes late at this point and wanted to work, so he went to the counter for clearance to work.

The supervisor noticed the driver had glassy eyes and smelled of alcohol. The driver told him he had a gig the night before and had some drinks, but denied he was intoxicated. He explained his eyes were glossy because he had only been out of bed for 13 minutes since he had slept in.

The supervisor told him he thought it would be best if the driver didn’t work, so the driver said he would “maybe go home.”

An investigative meeting was held the next day, where the driver denied he was impaired when he had arrived at work. The city referred him to a specialist in alcohol dependency to determine the driver’s “safety and reliability for safety-sensitive work.”

The specialist determined the driver didn’t have an alcohol or drug disorder. The driver was co-operative and it was determined he didn’t need further counselling.

On Aug. 25, the city determined the driver was unfit for duty when he reported to work on Aug. 19. Taken with his earlier suspension, this led the city to decide the driver wasn’t suitable for ongoing employment and terminated his employment immediately.

The union grieved the dismissal, arguing the city didn’t have just cause for dismissal. It also pointed out another driver had multiple instances of absenteeism and tardiness but was only given a warning letter outlining performance expectations.

 

You Make the Call

 

Did the city have the right to terminate the driver’s employment?

OR

Was there insufficient cause to dismiss the driver?

 

if you said the city had the right to terminate the driver’s employment, you’re right. The arbitration board noted that the established standard for termination of a probationary employee was suitability. During the probationary period, the employer is free to assess the capabilities of the employee.

The board found that the collective agreement didn’t distinguish between probationary and regular employees, but the agreement did stipulate that new hires had a nine-month probationary period.

“We agree that the law and arbitral jurisprudence supports the view that an agreement to a probationary period is in itself an agreement that differentiates a probationary employee from one who has completed probation and is a regular employee,” said the board. “It is sufficient for the parties to a collective agreement to agree that new hires are on probation for a period to invoke the suitability standard.”

The board found that if the standard for termination of probationary employees was “elevated to just cause,” it would render the probation period meaningless. Therefore, suitability remained the standard during probation.

The board also noted that it didn’t matter whether the driver was not intoxicated when he reported for work, since his disheveled appearance and glossy eyes caused a supervisor to determine he was unfit for work anyway.

Since the driver had a five-day suspension on his record and was deemed unfit to work after reporting late, that was enough for the city to reasonably determine the driver wasn’t suitable for  regular employment as a city bus driver, the board said in dismissing the grievance.

For more information see:

Saskatoon (City) and ATU, Local 615 (Read), 2015 CarswellSask 336 (Sask. Arb.).

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