Clearing out truck not a resignation: Board

Company assumed truck driver quit after getting ticket when he cleaned out his truck and left the keys

A British Columbia company should not have assumed a driver quit when he cleared out his belongings and left the keys in the truck, the Canada Arbitration Board has ruled.

Philip Filion was a truck driver for Hyon Enterprises, a long haul trucking company based in Prince George, B.C. Filion was required by law to conduct inspections of his truck both before and after a trip and record any defects in a driver’s log. All drivers of tractor-trailers had to meet the same requirements according to the law.

Drivers were also required to keep a daily log during trips, recording work and rest times, as well as whenever they checked their vehicle. If a driver missed any problems in an inspected, the driver could be fined and assessed National Safety Code Points. The Ministry of Transportation tracked drivers’ safety points and these could trigger safety audits of trucking companies.

Following an audit, Hyon sent a memo to all its drivers stating it was concerned about the number of safety points its drivers were accumulating and the possibility it could trigger another audit. The memo reminded drivers of the types of violations for which they had been fined and warned that any driver accumulating more than nine safety points within two years would be let go.

On March 6, 2009, Filion told his boss about a cracked windshield on his truck that needed repair. He didn’t report any other problems on the inspection log. After it was fixed, Filion took the truck to the company’s weigh scales to check it out before his next trip on March 8.

An inspection found several items on the truck that needed attention and the truck was not be allowed to leave until the problems were fixed. Filion called his wife to pick him up and called his boss to inform him of the situation. The boss came during the inspection and told Filion to go home and the truck would be dealt with later. Filion retrieved his personal belongings from the truck and went home with his wife.

When the inspection was finished, the inspector told the boss the truck needed to be picked up, along with Filion’s ticket for not reporting the problems. When the boss showed up, he discovered Filion had locked the keys inside. Because Filion left the keys in the truck and cleaned out his belongings, the boss assumed he had quit.

Several days later, Filion’s boss called him at home and spoke with his wife, asking her to return the truck remote and key and pick up his cheque as Filion was out of town. When Filion returned and went to pick up his cheque, he was also given a Record of Employment (ROE) that stated he had quit. He tried to explain that he hadn’t quit but the boss wasn’t available.

The board found Hyon was too hasty when it assumed Filion quit his job. His boss told him to leave the truck and go home and it was likely Filion thought he would be assigned a new truck, making it necessary to move his things. At no point did Filion say he quit and he tried to set things straight when he received the ROE, said the board.

Though Filion showed poor judgment by locking the keys in the truck and missing some things on an inspection, the board found he had no prior disciplinary record so termination wasn’t appropriate, despite the warning memo Hyon had sent to its drivers.

“Without a complete progressive and corrective scheme for discipline, such a unilaterally imposed policy becomes arbitrary because there is no opportunity to correct behaviour or to consider any legitimate explanation or concern a specific driver might have,” said the board.

The board found the employment relationship was damaged beyond the possibility of reinstatement, so Hyon was ordered to pay Filion 26 weeks’ worth of wages, minus four weeks to account for a suspension from his infractions, for a total of $27,3380.78. See Filion v. Hyon Industries Ltd., 2010 CarswellNat 1827 (Can. Arb. Bd.).

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