Toronto Transit Commission incident highlights importance of context in just cause
By now, Torontonians and many Canadians outside the Toronto area are familiar with the situation involving George Robitaille — otherwise known as “the snoozing TTC collector.”
The incident — in which a transit rider observed and took photos of a collector for the Toronto Transit Commission (TTC) fast asleep in his booth for several minutes — made headlines and angered the public. Subsequently, more photos surfaced, showing other TTC employees caught sleeping on the job. More recently, a TTC bus driver was caught on video parking his bus, mid-route, to buy coffee and visit the washroom, leaving passengers waiting for about seven minutes.
After the first incident came to light, the public condemnation was swift. There was no shortage of calls for Robitaille to be fired, along with calls for a complete revamping of the TTC, particularly in light of the fact the head of the TTC had very recently acknowledged deficiencies in customer service.
In an apparent attempt to divert attention or blame, the union representing TTC employees questioned the motives of the picture taker, suggesting the failure to knock on the booth or otherwise attempt to ensure the collector was alright was the truly shocking and offensive aspect of the story. Since then, Robitaille has publicly apologized and also gone on the radio to defend his actions (or inaction) in a somewhat less apologetic manner.
As the dust settles, it is a prime opportunity to consider the incident in the context of Canadian employment laws. Robitaille remains an employee of the TTC. Whether or not he was disciplined, and to what extent, is not publicly known. However, many commentators have started to ask what someone has to do in order to get fired. They have also used the incident to support criticism that workers, particularly those protected by a union, cannot be fired no matter what they do.
The reality is employees can be dismissed for cause and, therefore, without notice or severance when their misconduct or performance is so egregious the employment relationship has been irreparably harmed. In such circumstances, courts and arbitrators will find just cause for dismissal existed and uphold a termination on that basis.
In Robitaille’s comments during a radio interview on Jan. 25, he offered many explanations or excuses for his sleeping on the job. He mentioned his lengthy career with the TTC, an apparent multitude of illnesses including the possibility of sleep apnea, a lengthy list of medications he is taking and the fact he had worked for 30 consecutive days leading up to the incident.
One can only wonder how a unionized employee in Canada could be forced to work 30 days in a row. The only explanation would be he volunteered to do so, which seems particularly ill-advised if he suffers from a variety of illnesses, is taking several forms of medication and may suffer from sleep apnea.
During and after the radio interview, I heard many people snickering about Robitaille’s explanations and, essentially, suggesting they were irrelevant and he should be fired as a result of his behaviour.
Although many may be skeptical of the explanations offered by Robitaille, this situation is a good reminder of the fact an employer must take a contextual approach in assessing whether just cause for dismissal exists in any situation where an employee engages in misconduct, such as sleeping on the job. The contextual approach also involves the entirety of the employment relationship. This includes the length of the employment relationship, the nature of the employee’s position and duties, prior discipline and any other contextual factors relating either to the relationship or misconduct.
The misconduct cannot be considered in isolation. It is only once all of the relevant factors have been considered that an employer, or a court, can determine whether the relationship has been irreparably harmed by the misconduct.
When faced with apparent misconduct on the part of an employee, it is incumbent upon an employer to conduct an appropriate investigation. In assessing whether an employment relationship has been irreparably harmed, courts and arbitrators often consider an employee’s behaviour during the course of the investigation. In many cases, this can be the difference between a finding of just cause and a finding that dismissal without notice was excessive. An apologetic, dishonest employee is less likely to be given a second chance than one who admits to her wrongdoing and offers suitable apologies and assurances it will not happen again.
The contextual approach is designed to allow for discretion and avoid hard and fast rules when the potential outcome is summary dismissal, which is dismissal without notice, pay in lieu or severance. Summary dismissal has been referred to by some judges as “the capital punishment of employment law,” so it is not surprising courts are reluctant to approve it in ambiguous circumstances.
Because a contextual approach is required, the misconduct in question will not be the only factor in determining whether summary dismissal is appropriate. For that reason, it is entirely possible two employees will be guilty of the exact same misconduct but the penalties will differ in each case. For example, a long-term employee with a clean disciplinary record will typically be given more leeway than a recent hire who has already been in trouble repeatedly.
No matter how egregious the conduct appears to be, it is crucial employers engage in an appropriate investigation, consider all of the contextual factors and then decide whether summary dismissal is warranted. Courts and arbitrators will uphold summary dismissal in appropriate circumstances. However, the onus is on the employer to justify the decision.
Stuart Rudner is a partner in Miller Thomson’s labour and employment group in Toronto. He can be reached at (416) 595-8672 or [email protected].
