You make the call
This edition of You Make the Call features a trucking company that deducted the cost of recovering a truck and trailer from the side of the road after the driver was arrested for impaired driving from the driver's last paycheque.
The company, Penta Transport, is based in Nanaimo, B.C., and specializes in transporting construction and building materials throughout the western provinces, Alaska, and the northwestern United States. Penta hired Jay Cross as a truck driver on March 22, 2017, a position that included a probationary period to determine the suitability of the employment relationship.
When Cross was hired, the company instructed him on the Penta driver’s manual, which included a section stipulating that any employee who was under the influence of or consumed drugs or alcohol while on duty, or brought drugs or alcohol to company premises or on its trucks, would be subject to immediate termination. The manual also stated that “any costs associated due to these illegal actions will be charged back to the driver.” Cross signed an acknowledgement that he had received and read the manual.
Cross was given his first assignment on March 30 and began picking up and delivering loads in a truck and trailer to locations in Manitoba, Alberta, and B.C. In early April, he was assigned to pick up a load in Manitoba.
In the middle of the night of April 10, one of the two co-owners of Penta, Gordon Putz, received a phone call from the RCMP in Maidstone, Sask., informing him that Cross had been arrested there for an alcohol-related offence. It turned out that Cross had been drinking that evening and, though he hadn’t been driving, he was in care and control of the Penta truck and trailer he had been driving from Manitoba. Cross’ blood-alcohol content was above the legal limit and, as a result, he was charged with impaired driving.
The RCMP told Putz that after Cross had been arrested, the truck and trailer had been left on the side of the highway, so the company needed to get it moved. The company’s other co-owner arranged for a towing company to take the truck and trailer to its yard in Lloydminster, Sask., which was near the Alberta/Saskatchewan border. Another Penta driver travelled to Lloydminster to pick up the truck and deliver its load to its final destination.
The company incurred several expenses sending the replacement driver and it had to keep one of its trucks parked while the other driver took care of Cross’ load. The expenses included the travel expenses of the replacement driver from Vancouver, the towing fee, and the replacement driver’s wages — totalling $1,539.86.
Cross didn’t contact Penta after his arrest. The company terminated is employment — one month after his hiring and within his probationary period — and deducted the expenses for the recovery of the truck from his final paycheque, as per its driver manual for “illegal actions” related to alcohol. Cross made no attempt to contact the company for two months until he called asking about the deductions.
When informed of the reason for the deductions, Cross filed a complaint under the Canada Labour Code seeking recovery of withheld wages.
You Make the Call
Was Cross entitled to his entire final paycheque?
OR
Had Cross agreed to the deductions for the expenses related to his arrest when he acknowledged the policy in the driver’s manual?
If you said Cross was entitled to his entire final paycheque, you’re right. The adjudicator noted that the Canada Labour Code only permitted employers to make deductions from wages in four instances: to pay amounts required by legislation, amounts required by a court order or collective agreement, if authorized in writing by the employee, or any other amounts prescribed by regulation.
Penta argued that Cross’ acknowledgement of the driver’s manual constituted written agreement of the deduction — Cross committed an illegal act that led to Penta incurring expenses to recover the truck and trailer that he had abandoned at the side of the road when he was arrested. The driver’s manual also gave Cross notice that those costs would be charged back to him, said the company.
However, the adjudicator found that the provision in the driver’s manual was “very general and broad” and it wasn’t possible to determine the amount or type of deduction Cross agreed to if he breached the alcohol provision. Had Penta wanted to recover the costs of a truck and trailer recovery from any illegal actions related to alcohol, it should have specified as such in the manual, the adjudicator said.
“The wording of the employer’s driver’s manual is not clear and unequivocal in regards to any future deductions for costs related to breach of the alcohol prohibition provisions,” said the adjudicator, finding that Penta didn’t have written authorization to make deductions.
The adjudicator suggested that Penta might have a case to pursue recovery of its costs in another legal forum, but it couldn’t do so under the Canada Labour Code. The adjudicator upheld an earlier order from a federal labour program inspector for Penta to pay Cross his entire final paycheque. See Penta Transport Ltd. and Cross, Re, 2018 CarswellNat 5037 (Can. Lab. Code Adj.).
