Argument with drunk passenger led to investigation, suspension

Alberta bus driver ‘reasonable’ in self-defense

Argument with drunk passenger led to investigation, suspension

An Alberta bus driver’s suspension following a physical altercation with a passenger has been struck down by an arbitrator who found the driver acted reasonably and in self-defence.

Mark Carpenter was a bus driver for the City of Edmonton since 2011 with a clean disciplinary record. He was subject to a collective agreement that required employees to conduct themselves in a professional manner and to act courteously towards passengers. He received training on how to deal with abusive customers — de-escalate, call for help, and remain in the driver’s seat. The city’s policy required only the use of “reasonable force” for self-defence.

On April 20, 2019, an intoxicated woman boarded Carpenter’s bus and said she had no money but really needed a ride. Drivers were trained to tell passengers who couldn’t or wouldn’t pay the fare to tell them that it was fine and to pay double the next time, as a way to ensure things didn’t escalate, so Carpenter did so. However, the passenger was acting irrationally and was unexpectedly infuriated by Carpenter’s response.

The passenger spit in Carpenter’s face and to Carpenter, appeared to be about to spit on him again, so he reached up and pulled her down with her back to him. He held her with one arm while he radioed for help with his other hand. The passenger broke free after about 30 seconds of struggling and Carpenter pushed her towards the door. The passenger then left the bus.

Police officers, transit security, and a transit inspector soon arrived and Carpenter explained what had happened. The passenger was known to police and they ticketed her for spitting and being drunk and disorderly in a public place.

The city considered Carpenter a victim of assault, but the next day another passenger who had been on the bus called in to complain that Carpenter had choked the disorderly passenger, wrapped his seat belt around her neck, and punched her in the head. The city launched an investigation.

Carpenter recounted his version of the incident and acknowledged restraining the passenger. The city viewed a surveillance video that showed he didn’t wrap the seat belt around the passenger’s neck or punch her, though his arm could be seen across her neck. The city felt the video confirmed Carpenter’s account, but it was concerned about the arm across the neck and the push towards the door, which it considered unacceptable physical contact with the passenger. It decided to suspend him for three days for reacting in anger and escalating the situation.

The union grieved the suspension, arguing that Carpenter was acting in self-defense and he was entitled to take reasonable steps to ensure the passenger didn’t spit on him again.

The arbitrator found that Carpenter’s version of the incident was supported by the video evidence and his reason for grabbing the passenger — because he thought she was going to spit on him again — was plausible. In addition, the reason for the city’s investigation was the complaint that had been called in, which had essentially been proven to be false with the video evidence.

The arbitrator also found that it was an intense moment and there was little time to act. Though grabbing the passenger escalated things into a physical altercation, spitting was a form of assault as well and Carpenter was entitled to act in self-defense if he continued to feel threatened, said the arbitrator, adding that the arm on the passenger’s neck wasn’t intentional and was a result of the struggle.

The arbitrator concluded that “the degree of force used by [Carpenter] to protect himself against a further assault to be reasonable.” The city was ordered to clear the three-day suspension from Carpenter’s file and compensate him for the loss of earnings during the suspension.

Reference: Edmonton (City) and ATU, Local 569. James Casey — arbitrator. Adam Norget for employer. Patrick Nugent, Rohit Gill for employee. Dec. 22, 2020. 2020 CarswellAlta 2530

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