Charged with and subsequently convicted of two Criminal Code violations for the off-duty operation of a motor vehicle while impaired by alcohol, a New Brunswick school bus driver was fired from her job.
While the union grieved, arguing that termination was excessive for the six-year employee with a clean record of employment, the employer countered that the driver's lack of candour about the two off-duty incidents and the potential negative effect on the reputation of the bus service made her continued employment untenable.
R.L., a single mother with two children, started as a school bus driver for School District 10 in 2002 after four years of driving tractor trailers and dump trucks. Hired as an hourly driver with no duties other than driving, until 2008 R.L. had no record of disciplinary action by the employer, no criminal convictions and no prior driving infractions.
That changed on Saturday, March 29, 2008 when R.L. was charged with operating and being in care and control of an automobile while having a blood alcohol content over .08. Some four months later, during the summer break, R.L. was involved in a similar incident and charged again.
Rumours
Informed about the first charge by a telephone call from a concerned citizen, R.L.’s supervisor informed the school district’s human resources director about the “rumour” and R.L. was called in to an informal fact-finding meeting.
A more formal meeting was held some weeks later with a union representative in attendance. The tenor of the meeting was supportive and focused on providing support and assistance to R.L. who confirmed that she had been charged and that she intended to plead not guilty. Following the meeting R.L. was advised in writing that she was to keep her supervisor informed about the progress of the case. The employer took no action against R.L., and she continued to perform her duties as a school bus driver.
Due to changes in court dates, the matter was still unresolved when the supervisor and direct were informed by police on December 16, 2008 about a second impaired driving charge pending against R.L. stemming from an incident that occurred during the summer. The supervisor immediately directed R.L. not perform her bus runs the next day and to attend a meeting along with a union representative. Subsequently, R.L. was reassigned to home without duties, but with pay pending the outcome of her trial.
February 5, 2009 R.L. pleaded guilty to the two charges and was fined $700 and $1,000 respectively and prohibited from driving for two years. Citing her inability to perform the duties of her job because of the suspension of her license and her lapses in judgment, R.L. was terminated by letter on March 16, 2009.
Potential damage to reputation
The arbitrator acknowledged that, by itself, the suspension of R.L.’s driving privileges was insufficient to justify her termination. At issue was R.L.’s off-duty conduct, how it reflected on her judgment, its connection to her employment and the reputation of her employer: “[R.L.’s] off-duty conduct in operating or having care and control of a motor vehicle after consuming alcohol is damaging to the reputation of the employer because of its clear nexus to her actual employment duties of transporting school aged children to and from school.”
The arbitrator accepted that a “fair-minded” member of the public would be justifiably concerned about the continued employment of a bus driver with criminal convictions for alcohol-related driving offences and that continued employment under such circumstances would negatively affect the reputation of the employer.
R.L.’s judgment must also be called into question, the arbitrator said. “[R.L.’s] decision to get behind the wheel of her car after consuming alcohol on 9 August 2008 reflects not only a lack of judgment on that occasion but a failure to learn from the events which resulted in [the] event of 29 March 2008.”
Moreover, by failing to inform her employer of the charges pending, she deprived the employer of the opportunity to take steps to assure the safety of the children who rode the school bus.
As a low seniority employee rendered incapable of performing the fundamental duties of her job for two years, the arbitrator dismissed the grievance, ruling that R.L.’s discharge in the circumstances was neither unreasonable nor excessive.
