Diversified Transportation Ltd. v Teamsters Local 362, 2023 CanLII 32700 (ABGAA) is an Alberta labour grievance involving the termination of employment for cause of a bus driver.
The grievor was unsuccessful, and his termination of employment for just cause was upheld by Arbitrator Mia Norrie.
This case is a great example of an arbitrator weighing different factors to assess whether just cause was too severe a penalty for misconduct. It is also a great example of the sort of conduct that can lead to just cause for dismissal.
Facts
The following are the pertinent facts summarized by Alberta grievance arbitrator Mia Norrie:
- The grievor, Palak Patel, was employed as a bus driver for the respondent, Diversified Transportation Ltd. (“Diversified”) for about 2 years
- Diversified is in the business of chartered bus transportation, primarily in the Northern Alberta oilfield to move personnel from their housing to worksites and back. Diversified works for companies like Suncor, IPL, Dow Chemical, Syncrude, etc.
- Prior to starting the route one day, one of the passengers was standing and Mr. Patel asked him to sit down
- The grievor started driving before everyone was sitting, and after a short time applied a “hard brake”, to slow the bus quickly. He did this in order to scare the passengers into sitting down
- One of the passengers’ head whipped back and forth, and he started vomiting
- The grievor initially admitted to his employer that he applied a hard brake, but at the hearing denied it and did not accept responsibility
- The evidence was clear that the grievor understood there was a direct connection between TRIF numbers (a safety rating) and the employer’s ability to get transportation contracts
Analysis / Conclusion
The arbitrator first found that applying the hard brake was clearly misconduct, and then went on to consider whether it was severe enough misconduct to justify termination of employment for just cause.
In the arbitrator’s weighing of all the circumstances, she noted that, the fact that one of the passengers was injured did not in and of itself influence whether his employment should have been terminated, because the more significant question was the blameworthiness of the grievor’s actions. In this case, the grievor jeopardized the safety of his passengers in a safety sensitive environment.
The arbitrator also noted that Diversified had safety and client obligations to ensure that it was taking safety infractions seriously, and that the grievor’s discipline would serve the function of deterrence of similar actions by fellow drivers.
The union argued that the isolated incident should not have justified termination for cause, because the grievor had a clean discipline record. The arbitrator disagreed, noting as follows:
I may have been more inclined to consider the Union’s arguments with respect to reinstatement and substitution of a penalty had the Grievor been more forthcoming during his testimony. It was clear from the statements of the other drivers that the Grievor performed a hard brake maneuver. In fact, even the Grievor’s initial statement said as much. However, at hearing the Grievor did not accept responsibility for his actions. Not only did he deny he performed a hard brake, despite the statements of the other drivers, he suggested that they were all mistaken or were being untruthful. This was his evidence, even though he acknowledged that as professional drivers they were all family with the term “hard brake” and what it meant.
In the result, the arbitrator found that Diversified’s decision to terminate the grievor’s employment for cause was appropriate in the circumstances.
My Take
This case shows the balancing act arbitrators have to do in order to determine if there is just cause for dismissal in a labour case. This case illustrates that sometimes refusal to take responsibility is the difference between a grievor winning and losing a termination arbitration.
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