Driver dismissed under last chance agreement

Passengers complained they weren't picked up on route

The Amalgamated Transit Union Local 113 grieved the dismissal of a bus driver after he failed to honour the terms of a last change agreement.

The driver — referred to as Driver X — was terminated by Transdev Services on Sept. 10, 2015. Driver X was fired after he violated the terms of his last chance agreement with the employer and his union.

In the agreement, all parties agreed that any violation of the employer’s transportation policies would be cause for immediate termination and that an arbitrator would have no authority to modify the discipline notwithstanding any provision of the Labour Relations Act.

Prior to Driver X’s dismissal, the employer received a number of complaints from its customer, Ontario’s York Region, that bus drivers had been missing (failing to pick up) passengers. The employer’s procedure clearly required drivers to stop their bus and open the entrance door if they see an individual waiting at the bus stop, whether or not they feel the customer wants to board their bus.

The procedure also required drivers to remain in the right lane at all times in order to conveniently and safely drop off and pick up passengers.

On Aug. 31, 2015, a customer called in a complaint that a bus had driven by while she was waiting at a bus stop. She provided the exact date, time and location this incident occurred.

An investigation was launched and Driver X admitted he was the driver of the bus that passed the customer in question. Time-stamped photographs from the video camera located inside the bus show the bus was in the middle lane of the street when Driver X failed to pick up the passenger.

Driver X was terminated on Sept. 10, 2015, for breaching company policies and procedures by driving in the centre lane rather than the curb lane and by missing a waiting passenger.

The union, however, argued the employer couldn't rely on the last chance agreement in this case because of Driver X’s leave of absence. The agreement was enacted on March 22, 2013, and was in force and in effect for one year from its date of signing.

Driver X was on leave from May 23, 2013, until April 20, 2015, and the incident in questions occurred long after the agreement’s expiration. As a result, the union argued the agreement was unenforceable.

The employer, however, argued the one-year clock on the last chance agreement was stopped due to Driver X’s leave. Dismissal was appropriate, the employer argued, because the penalty for Driver X’s infractions was preordained by the last chance agreement and an arbitrator is without jurisdiction to substitute a penalty.

Arbitrator James Hayes found Driver X’s leave did in fact stop the one-year clock on the last chance agreement, meaning the agreement was in effect at the time of the incident.

As a result, Hayes said the infractions breached the last chance agreement and an arbitrator had no authority to modify the discipline implemented by the employer.

“Driver X’s last chance agreement frames this arbitration and that last chance agreement deprives me of jurisdiction to consider any modification of the discharge penalty imposed by Transdev,” Hayes ruled.

“As I have determined that the grievor breached Transdev policies on Aug. 31, 2015, the grievance must be dismissed.”

Reference: Transdev Services and the Amalgamated Transit Union Local 113. James Hayes — arbitrator. Gregory Power for the employer, Alanna Mihalj for the union. March 16, 2016.

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