‘Creative’ discipline not related to offence

The employer had sufficient grounds to terminate the grievor, who had been careless and damaged company property. However, in cutting him a break, they fashioned discipline that was not reasonably related to his offence. The arbitrator varied the penalty to make it more appropriate.

After crashing a subway train through a garage door at the maintenance yard, a transit worker was suspended for five days, demoted and banned from driving any company vehicles for five years. The union grieved, arguing the driving ban was excessively punitive.

A Carhouse Operator for a municipal transit authority, L.C. had about five years’ service with the employer when he drove a train through a closed garage door. He also had three suspensions and two warnings on his file over the previous two-year period.

The infractions included a signal violation for which he received a five-day suspension and two incidents involving careless operation of a subway train. Equipment was damaged in one of the latter incidents.

On June 22, 2009, L.C. and a co-worker were at either end of a four-car train bound for the carhouse. As the cars were mismatched, they were not synched and the workers could only communicate with radios. While the train first headed south, L.C. was at the head of the train facing the direction of travel. However, when the train turned north towards the carhouse, L.C. was at the back of the train and no longer facing the direction of travel.

Believing that he was powering the train alone, the co-worker at the head of the train powered down as the train approached the carhouse. When the train did not slow, the co-worker radioed L.C. to stop but it was too late.

While there were no casualties as a result of the accident, serious injury or death could easily have resulted.

L.C. was taken out of service at the time of the incident. At the second stage of the grievance procedure he was assessed a five-day suspension and banned from driving any company vehicles for five years. He was also demoted to the position of Carhouse Helper, which cut his hourly wage by $2.35.

Appalling record

Before the Arbitrator, the employer said the discipline imposed was appropriate in view of L.C.’s “truly appalling” driving record. While the incident taken together with his record made a case for dismissal, the employer said that by only demoting him and imposing a driving ban, it was actually extending L.C. a break.

The union said the driving ban was “overkill.” There was little authority for such a ban and it was not sufficiently related to the reasons for discipline. Moreover, the imposition of such a ban would dramatically and inappropriately interfere with L.C.’s seniority rights by putting jobs with incidental driving duties out of reach.

The Arbitrator said L.C.’s reprieve from termination could be distinguished from a gambit to make harsh discipline seem palatable by inflating the offence and then taking termination off the table. Termination was justified in this case, the Arbitrator said.

Limits on creativity

However, the decision to retain L.C. did not give the employer carte blanche to fashion a penalty.

“[A] decision to retain the employment relationship when termination might have been justifiable does not give the employer licence to express its creativity without limits in fashioning an alternative form of discipline. The discipline imposed must still bear some rational relationship to the issue being addressed, while also serving the purposes of employee discipline, the primary one being the correction of misconduct,” the Arbitrator said.

L.C.’s failure to follow safety procedures on the day of the incident despite three previous suspensions made alternative discipline, including a demotion, warranted.

The suspension too was not an issue. However, there were issues with the scope and length of the driving ban, the Arbitrator said.

There was not a sufficient connection between L.C.’s failings as a train operator to justify banning him from operating other types of vehicles, the Arbitrator said.

“There is nothing in the evidence that would lead me to believe that a total driving ban is necessary for safety reasons or to impress upon the employee the importance of following proper procedures in operating a subway train.”

The Arbitrator agreed that the driving ban had negatively affected L.C.’s seniority rights.

“My conclusion is that the total driving ban is too broad and excessively punitive, and was therefore not justified. I order it amended to a ban on operating vehicles covered by the Subway/SRT rule book.”

The Arbitrator reduced the ban to three years and ordered L.C. be returned to his position of Carhouse Operation as of July 1, 2012.

Reference: Toronto Transit Commission and Amalgamated Transit Union, Local 113. Lorne Slotnick — Sole Arbitrator. Simon Blackstone for the Union. Stephen Lavender for the Employer. August 9, 2011. 19 pp.

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