GSB#2009-2662

Union# G-62-09-130

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Sorial)

Union

• and -

The Crown in Right of Ontario (Metrolinx - GO Transit)

Employer

BEFORE

Janice Johnston

Vice-Chair

FOR THE UNION

Carlo Di Giovanni Green & Chercover Counsel

FOR THE EMPLOYER

Daniel Wong Osler, Hoskin & Harcourt LLP Counsel

HEARING

April 16, May 14, August 5 and 6, 2010.

Decision

1On October 8, 2009, the grievor in this case, Mr. Ashraf Sorial, was suspended by his employer, GO Transit, a Division of Metrolinx, ("GO Transit"), for two days without pay. Mr. Sorial is a bus driver for GO Transit. He was suspended for his conduct on September 16, 2009, as on that day while operating a GO bus he failed to stop for a red light and received a Red Light Camera System Offence Notice. The union has filed a grievance contesting the discipline issued.

On September 11, 2009, GO transit issued the following Bulletin:

BuIIetin #9‑187

Issued; September 11, 2009 Effective: Immediately

SUBJECT: RED LIGHT CAMERA OFFENCES

Recently, we have received several notices of red light camera offences, all of which could have been prevented. The fines associated with these are automatic and must be paid promptly. The offence also negatively impacts our CVOR record.

Effective immediately, please be advised that any employee assigned to a GO Transit bus that receives a red light camera offence notice will automatically be given a two (2) day suspension without pay.

When approaching a signalized intersection, you must not attempt to "beat the light" if it is changing. Please remember that you must stop, when safe to do so, when approaching an intersection with the amber light illuminated,

Violating the Highway Traffic Act by proceeding through an intersection on a red light not only exposes us to penalties for the offence but it also places the operator and other motorists at greater risk of a collision in the intersection. We also create a negative image to the general public by displaying a disregard for the Highway Traffic Act and other road users.

Professional safe driving is something we all should strive for!

C.P. (Paul) Finnerty

Director, Bus Services

2This notice was posted in the workplace on September 11, 2009. Mr. Sorial acknowledged that he was aware of it and read it the same day it was posted in the drivers area in the Streetsville garage. He understood that the Bulletin was intended to remind employees of the seriousness of running red lights and that to do so was unacceptable to the employer.

3The following chart reflects the incidents of Red Light Camera System Offence Notices received by bus drivers employed by GO Transit commencing January, 2008, and the level of discipline (if any) that was imposed on them. I have deleted the names of the employees from the original chart as there is no need, for the purposes of this decision, to set out their names:

DATE	BADGE	LOCATION	FINE	DISCIPLINE
18-Jan-08	7813	Toronto	$180.00	Letter Reimbursement
8-May-08	7695	Brampton	$180.00	NIL
10-May-08	7840	Brampton	$180.00	NIL
10-Aug-08	8261	Toronto	$180.00	Verbal Counsel
11-Sep-08	7610	Mississauga	$180.00	Reimbursement req’d
23-Jul-09	7841	Mississauga	$180.00	NIL
31-Jul-09	7644	Mississauga	$180.00	Verbal Counsel
15-Aug-09	8222	Mississauga	$180.00	Letter of Warning
16-Aug-09	7823	Brampton	$180.00	NIL
26-Aug-09	1714	Brampton	$180.00	Letter of Warning
16-Sep-09	8274	Mississauga	$180.00	2-day suspension

4I heard from two witnesses in this case. Mr. Anthony Pezzetti, Superintendent Bus Operations in the West Region, testified for GO Transit and the grievor testified on behalf of the union.

5This case raises two distinct issues. The union questions the validity of the new policy provided for in Bulletin #9‑187 and in particular the validity of the specific penalty i.e. the automatic two-day suspension. The second issue before me pertains to the application of the policy to the grievor that resulted in the automatic imposition of a two-day suspension.

i) The validity of Bulletin #9‑187 and the new policy

6Mr. Pezzetti was the manager who disciplined the grievor. He became aware of the new policy with regard to the handling of Red Light Camera System Offence Notices on September 11, 2009, the day that Bulletin #9‑187 was posted electronically by email. He was not involved in the development of the policy. He did not know what the group that drafted the new policy specifically relied upon in reaching the decision that a new policy was required or how the fact that employees would receive a two-day suspension for red light camera infractions as opposed to some other level of discipline was agreed to.

7However, shortly after Mr. Pezzetti received the Bulletin electronically, he spoke to his manager, Barry Stannard, and was given the background information that led up to the issuance of Bulletin #9‑187. Although he wasn't positive, Mr. Pezzetti indicated that he was relatively certain that Mr. Stannard was part of the group that developed the Bulletin. Mr. Stannard indicated to Mr. Pezzetti that as there had been an increase in the number of red light camera infractions, a consistent way of handling this infraction was needed. It was felt that a two-day suspension was appropriate to highlight that the employer viewed this type of infraction as a serious matter. The severity of the disciplinary response was reflective of the way in which management viewed this type of driving offence.

8The Bulletin itself makes reference to the fact that "the offence also negatively impacts our CVOR record". CVOR stands for Commercial Vehicle Operator's Registration and it is a system that tracks the on‑road safety performance of commercial vehicles such as buses. It has come to light that this reference in the policy to the fact that the offence negatively impacts on GO Transit's CVOR record is not true. Although Mr. Pezzetti could not be certain as to the exact date upon which he became aware of the mistake in the Bulletin, he indicated that it was some time in the spring of 2010.

9Counsel for the union argued that the new policy as reflected in the Bulletin is unreasonable as a whole and that it should be disregarded altogether. The employer did not call any direct evidence from a member of the committee that created the Bulletin to explain the reasons behind the policy or to establish any legitimate purpose for it. It was suggested that I have absolutely nothing to explain why the Bulletin was put in place or why the employer's practice of imposing little or no discipline had to change. Mr. Pezzetti's evidence should be disregarded as he was not part of the decision-making process and was only given a vague explanation by Mr. Stannard for the reasons giving rise to the change.

10The reference in the policy to the fact that "the offence also negatively impacts our CVOR record" is a misrepresentation and may be indicative of bad faith on the part of the employer. Mr Pezzetti did not know if the statement was inaccurate at the time the policy was put in place and whether or not the drafters of the Bulletin knew that it was inaccurate but purposely included it in the policy. Counsel asked that I draw a negative inference from the fact that no employer witness was called upon to clarify the situation. He suggested that I should conclude that it was known when the Bulletin was posted that there were no CVOR implications. Either the employer knew of this and purposefully misled the union and employees by putting this reference into the Bulletin, or it did not do due diligence to find out the facts. If I chose to disregard the policy, then I am left with a two-day suspension that is clearly discriminatory when you consider that only warnings or no discipline at all was given to other drivers for the same offence in the past.

11In the alternative, if I am not persuaded that the policy as a whole is unreasonable, counsel for the union asked that I conclude that the policy is unreasonable in that it imposes an automatic blanket two-day suspension on all employees regardless of the circumstances. There is no evidence in this case that there was a need to jump from little or no discipline to a two-day suspension. I have no basis to conclude that the existing situation was so problematic for the employer that the arbitrary jump to a two-day suspension was reasonable. In support of this analysis, I was referred to the oft-quoted decision KVP Co. v. Lumber & Sawmill Workers’ Union, Local 2537 (1965) 1965 CanLII 1009 (ON LA), 16 L.A.C. 73 (Robinson).

12In addition, imposing such severe automatic discipline is inconsistent with the theory of progressive discipline recognized in this collective agreement. In support of this, counsel referred me to Article 4.14(2), which provides:

Under the corrective progressive discipline procedure, the Human Resources Officer shall make null and void disciplinary documents from the employee’s file from the date of issuance of each offence on the following basis ...

The clause goes on to provide the length of time that certain types of discipline shall remain on an employee’s file.

13In the final alternative, should I not conclude that the policy as a whole or aspects of it are unreasonable, then union counsel suggested that I am not bound by the employer's unilateral decision to impose an automatic penalty. The employer did not involve the union in the development of this policy and there is no specific penalty clause in the collective agreement. Pursuant to Section 48 of the Labour Relations Act, which is incorporated into the Crown Employees Collective Bargaining Act (the applicable legislation in this case), I have the discretion to substitute a penalty.

Section 48 of the Labour Relations Act, provides as follows:

Substitution of penalty

48(17) Where an arbitrator or arbitration board determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject-matter of the arbitration, the arbitrator or arbitration board may substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all circumstances.

14Counsel for the employer argued that the management's rights clause in the collective agreement clearly establishes the right of the employer to make and apply reasonable rules and regulations to be observed by employees and to discipline and discharge employees, subject to the requirement that discipline be for just cause and the grievance procedure. The management's rights clause provides:

Article 6 Management Rights

6.1 Except as otherwise abridged by specific provisions in this agreement, the Union acknowledges that the Employer shall be entitled to exercise all the usual rights and functions of management, which rights include, but are not limited to the right to ... maintain order, discipline and efficiency, ... discipline and discharge employees (provided that a claim that an employee with seniority has been disciplined or discharged without just cause may be the subject of a grievance and dealt with as provided for in this agreement) ...make and apply reasonable rules and regulations to be observed by employees, provided nothing herein shall restrict the rights of the parties pursuant to the Crown Employees Collective Bargaining Act, as amended 1993.

Employer counsel suggested that GO Transit had the right to issue Bulletin #9‑187 pursuant to the management’s rights clause. The Bulletin speaks for itself.

15More importantly, counsel argues, the seriousness of the subject matter is sufficient to allow the employer to have posted this Bulletin and to have taken the position it did. Counsel pointed also to the clear indication (captured in the chart set out above) that the employer’s historical response to Red Light Camera System Offence Notices was ineffective as the numbers were increasing. He pointed out that the union never grieved the Bulletin and the policy change it contained. At the time that it came out, the union did not challenge it at all.

16Counsel for the employer stated that the union in this case took issue with the fact that the Bulletin refers to an automatic penalty. However, the fact that the employer imposed a two-day suspension in this case does not negate or diminish the fact that GO Transit had just cause to discipline this employee. Counsel suggested that I have the jurisdiction to look past the fact that the suspension was based on an automatic penalty and assess and determine if a two-day suspension was appropriate in all of the circumstances. Counsel did not disagree that I had the discretion to substitute a lesser penalty but argued that I should not do so in the circumstances. In support of this, counsel referred to Diversified Transportation Ltd. (Maple Ridge Division) and Canadian Union of Public Employees, Local 561 (2003) (MacIntyre).

17Counsel for GO Transit suggested that the fact that the employer was mistaken about the impact of red light camera violations on its CVOR record does not affect the reasonableness of the imposition of a two-day suspension on a bus driver for running a red light. This case is about discipline for unsafe driving.

18I would like to deal first with the allegation made by counsel for the union that the employer was acting in bad faith when it made reference to the impact that red light camera offences would have on its CVOR record in Bulletin #9‑187. There is absolutely no evidence before me to support such a conclusion and it is not one that I am prepared to come to based on the evidence before me. Obviously it was an inaccurate statement and should not have formed part of the justification for the new approach being taken by the employer, but in the absence of any evidence indicating it was deliberately intended to mislead, I am not prepared to come to that conclusion. Clearly the employer made a mistake.

19Counsel for the union also argued that as the employer did not call as a witness a member of the committee that created the Bulletin, I had no evidence before me to explain the reasons for the policy, or why the employer’s previous approach to handling red light camera infractions had to change. I disagree. The Bulletin itself was made an exhibit in these proceedings. It makes clear the reasons why the employer had determined that there was a need to change the approach previously taken with regard to the handling of red light camera offences. I agree that it speaks for itself.

20The chart outlining the incidents of red light camera violations set out earlier in this decision establishes that in the past the employer had imposed little or no discipline for such offences. I accept the evidence given by Mr. Pezzetti that the decision to change the practice and put in place a new policy was due to the fact that there had been an increase in the number of red light camera violations and that it was felt that a consistent way of handling the situation was needed. The historical approach utilized by the employer did not seem to be having any deterrent effect. The employer therefore acted to address this issue as it was entitled to do pursuant to the management’s rights clause.

21I am satisfied that the Bulletin reflects a reasonable business decision made in good faith to address a situation that had become unacceptable to the employer. It is not unreasonable for GO Transit to put in place a policy in which it is clearly communicated to bus drivers that it is unacceptable to run red lights and that in the future the employer would respond to red light camera infractions by imposing discipline. I do not therefore accept the arguments put forward by counsel for the union that the policy was unreasonable as a whole and should be disregarded altogether.

22However, the fact that the employer chose to include a specific penalty in the policy does give me concern. The policy states in part “... Effective immediately, please be advised that any employee assigned to a GO Transit bus that receives a red light camera offence notice will automatically be given a two (2) day suspension without pay.”. Therefore, GO Transit has implemented a policy wherein every red light camera violation results in the automatic imposition of a two-day suspension.

23When an employee commits an act deemed by the employer to merit the application of a disciplinary response, it is necessary for the employer to carefully review the individual circumstances leading up to the event for which discipline is being contemplated. The employer must assess each situation based on the facts unique to it prior to determining the appropriate level of discipline to impose. The only exception to this is when the parties have negotiated and included in their collective agreement specific disciplinary responses to certain acts by employees. Or as they are commonly referred to, specific penalty clauses. That is not the case here.

24Counsel for the union, in his alternative argument, requested that I conclude that the aspect of the policy imposing an automatic two-day suspension on all employees who receive a red light camera violation regardless of the circumstances is unreasonable. Moving from the imposition of little or no discipline for particular conduct to the imposition of a two-day suspension is clearly a drastic and dramatic shift. While I am not prepared to conclude that the inclusion of an automatic penalty in the new policy articulated in Bulletin #9-187 is unreasonable, it is clearly unenforceable.

25In the absence of the union’s agreement, the employer cannot impose a specific penalty response that would override the jurisdiction of an arbitrator to substitute another penalty, if in the circumstances it is just and reasonable to do so. While an employer may be motivated by the desire to achieve consistency in the disciplinary response to certain employee actions, it is generally not appropriate to completely remove all discretion from the individual managers charged with the responsibility of assessing the situation and determining and imposing the appropriate level of discipline. Unless, of course, the union has agreed to this approach and it is reflected in the collective agreement.

26If the employer wants to ensure that employees understand that conduct that has been dealt with leniently in the past will not be handled in a similar fashion in the future, it can simply say so and indicate that discipline “up to and including” a certain level will be imposed. This is very common language. Or the employer can indicate that the conduct will be viewed seriously by the employer and may result in the imposition of significant discipline. There is no magic in the words used, but what is crucial is that the employer clearly communicate to its employees that it will be adopting a new approach.

27The employer did not challenge the fact that I have the right to review the situation or events that gave rise to the imposition of discipline in this case and, should I feel it is appropriate, to substitute such other penalty that may seem just and reasonable in all the circumstances.

28I turn now to the second issue in this case, which is the application of the new policy contained in Bulletin #9-187 to the grievor.

ii) The imposition of the automatic two-day suspension

29There is no dispute that on September 16, 2009, that a bus being driven by the grievor went through a red light at the intersection of Erin Mills Parkway and Folkway Drive. As a result, GO Transit, as the owner of the bus, was charged with the offence of failing to stop at a red light contrary to the Highway Traffic Act. The red light camera offence notice (the “notice”) contains a picture that shows the bus being driven by the grievor approaching an intersection in which the light had clearly already turned red. It also provides a second picture in which the bus is proceeding through the intersection when the light is red. This second picture showing the bus in the intersection indicates that the light had been red for 2.9 seconds.

30The notice indicates that at the time of the first picture, when the bus was approaching but had not yet entered the intersection, the light had been red for 1.7 seconds. The notice indicates that prior to turning red that the light had been amber for 4.2 seconds. Adding these two numbers together, it is apparent that before the grievor even entered the intersection, the light had not been green for at least 5.9 seconds. At the time of the first picture, the bus was travelling at a speed of 79 kilometres an hour in a traffic zone in which the maximum allowable speed was 70 kilometres an hour. The notice indicated that the set fine for this offence was $180.00, which was required to be paid by GO Transit, the owner of the vehicle. It is apparent on the notice that the road conditions are dry. The bus shown in the pictures is a green and white GO Transit bus. It was agreed that this type of bus is forty-five feet long with a seating capacity of fifty-seven.

31In examination in chief, the grievor testified that when he first looked at the intersection the light was green and as he got closer to the intersection he noticed that the flashing red hand was going. In accordance with proper procedure, he had his right foot “guarding” or covering the break. He testified that he scanned the intersection and that the light was orange or amber. He made the decision to proceed through the intersection as he felt that he was at the point of no return. When asked, he indicated that to him the point of no return means proceeding with caution through the intersection while maintaining the same rate of speed. At the time he went through the light, Mr. Sorial indicated that he thought it was amber.

32In cross-examination, Mr. Sorial agreed with all the facts contained in the offence notice. He agreed that when he was approaching the intersection at a rate of speed of 79 kilometres an hour for a period of 5.9 seconds, the light was no longer green. When it was put to him that this meant that when he was more than 400 feet from the intersection, the light was no longer green, he responded by indicating that he did not know how to answer that question. He indicated that it is difficult when you are driving a bus and proceeding with caution. He said that in the real world you proceed with caution and do not jeopardize the bus, passengers or driver. He indicated that the bus was almost full and that all the passengers were seated. Mr. Sorial was then asked if he was saying that even though he was 400 feet from the intersection when the light was no longer green, the safest thing to do was to go though the intersection? He responded by indicating that at the time he did think that and asked what was better: “to slam on the brakes when eighty per cent of the passengers were probably sleeping or to proceed through the intersection with caution”? When asked if he would do the same thing again if the same circumstances presented themselves, he indicated that he would do so.

33The red light camera system offence notice was served on GO Transit on October 6, 2009. Shortly after receiving the notice and after identifying the grievor as the driver, a meeting took place. In attendance were Mr. Pezzetti, Ms. Elizabeth Hoornweg, Supervisor Bus Operations, West Region, Mr. Mario Ferrante, ATU representative, and the grievor. At the meeting, Mr. Sorial was told that in accordance with the new policy set out in Bulletin #9-187, as he had received a red light camera violation, he would be suspended for two days. He was told that red light camera violations affect GO Transit’s CVOR, which in turns results in increases to the costs of insurance. Mr. Sorial indicated to management at the meeting that if he had realized that the light was red before he entered the intersection, he would have stopped. When he was testifying before me, Mr. Sorial stated that he said “if I knew it was a red camera I would have stopped”. I am satisfied that Mr. Sorial simply misspoke when he said this and in fact did not mean to include the word “camera”. I accept that he meant to say that he told management at the meeting that if he had realized the light was red, he would have stopped.

34Mr. Pezzetti version of what took place at the meeting was not significantly different. He indicated that they reviewed the red light camera offence notice and confirmed that the grievor was aware of Bulletin #9-187. The grievor was offered the opportunity to give his side of the story and to outline any mitigating factors he felt were relevant. Mr. Pezzetti defined mitigating circumstances in this context to mean circumstances outside the control of the driver. The grievor did not have anything to add. Mr. Sorial was given the following letter, which outlined that he was suspended and why:

October 8, 2009

Mr. Ashraf Sorial

2545 Erin Centre Blvd. #1605

Mississauga, ON

L5M 6Z9

Dear Mr. Sorial:

LETTER OF SUSPENSION

The purpose of this letter is to confirm the interview of October 5, 2009. Present were yourself; Mr. Mario Ferrante, representative for ATU Local 1587, Elizabeth Hoornweg, Supervisor Bus Operations, West Region and the undersigned.

On September 11, 2009, bulletin #9‑187 was Issued stipulating that any driver, while operating a GO bus that receives a red light camera offence notice will be given a two (2) day suspension without pay.

During the interview, Red Light Camera System Offence Notice number 3161‑997‑09‑10152123‑00 issued by the Ontario Court of Justice was presented. This offence notice shows that while operating bus trip 21302, you failed to stop for a red light at the intersection of Erin Mills Parkway and Folkway Drive.

At the time of the interview you were reminded that red light offences negatively impact the corporation's Commercial Vehicle Operator's Record, as well as pose a threat for a potential collision.

For this infraction, you are suspended without pay for two (2) days, namely: FrIday, October 9, 2009 and Tuesday, October 13, 2009.

Any future incidents of this nature will result in increased disciplinary action, up to and including dismissal. Please be reminded that it is the corporation's expectation that you drive defensively and operate your bus as the highly trained professional that you are.

I look forward to you cooperation in meeting this expectation.

Anthony Pezzetti

Superintendent, Bus Operations

West Region

35At the commencement of their employment with GO Transit, bus drivers are given extensive training, which they are required to complete before they are permitted to drive a bus on a regular basis. This training lasts for two months and one of the topics covered is safe driving practices. Mr. Sorial agreed that he had taken and successfully completed the training. He agreed that safety was a topic emphasized in the training. He acknowledged that he was taught that it is important to drive the bus in a safe manner at all times. It is important to him to do so and he understood that it is important to GO Transit that he do so. Part of the training emphasised intersection awareness, which means being aware of the intersection and all of its surroundings as the vehicle approaches the intersection, including road conditions, vehicles in and around the intersection and the colour of the traffic light.

36The grievor has approximately three years’ seniority and, apart from the incident giving rise to the imposition of discipline in this case, a clear record.

37In the view of counsel for the employer, this case is about safety and whether the imposition of a two-day suspension on the grievor for running a red light in 2009 was appropriate in the circumstances. The grievor admitted: that he had read Bulletin #9-187 days before committing the infraction on September 16, 2009; that he understood that running a red light was unacceptable; that he was aware of the consequences and what the response of GO Transit would be in the circumstances; that he ran the red light; that it was a violation of the Highway Traffic Act and that this exposed GO Transit to a penalty; that he placed himself, his passengers, pedestrians and other motorists at a greater risk of collision at the intersection; and that by running the red light, he created a negative image of GO Transit to the general public present at the intersection.

38Employer counsel took the position that GO Transit had the right to communicate to its employees what it feels is the appropriate penalty for specific infractions. He acknowledged that the union would likely argue that a two-day penalty was excessive because bus drivers who ran red lights in the past received at most a written warning for such incidents. But, as he put it, “that was then and this is now”. He suggested that the case law is clear that an employer can put employees on notice that its views on certain misconduct or behaviour has changed and that it will be imposing harsher penalties in the future. In support of this proposition, counsel referred to B.C. Transit and Independent Transit Union, Local 11 (1997) (McPhillips), Esso Petroleum Canada v. Energy and Chemical Workers’ Union, Local 614 (1989) 1989 CanLII 9271 (BC LA), 9 L.A.C. (4th) 390 (Chertkow), MacMillan Bloedel Ltd. v. Industrial Wood and Allied Workers of Canada, Local 1-85 (1993) B.C.C.A.A.A. No. 23 (Hope) and Alcatel Telecommunications Cable and International Brotherhood of Electrical Workers, Local 1572 (1996) (Chapman).

39In anticipation of the union’s argument, counsel suggested that the fact that there was no harm done in this case is not a factor I should consider in assessing the reasonableness of the penalty. This is not the type of case where the employer wants to or has to wait for something serious to happen. It is not appropriate for the union to downplay the running of a red light as a relatively minor traffic infraction. It is not and running a red light is a serious safety violation. Bus drivers are held to an extremely high standard of safety. In support of this, I was referred to Re Corporation of the City of Brampton and Amalgamated Transit Union, Local 1573 (1978) 1978 CanLII 3472 (ON LA), 19 L.A.C. (2d) 237 (Shime).

40Employer counsel argued that it was not even remotely possible for the grievor to be mistaken about the colour of the light when he entered the intersection and that it was impossible that he did not realize that the light was red. He suggested that we do the math. The grievor was travelling 79 kilometres per hour in a 70-kilometre-an-hour zone. This meant he was travelling 72 feet per second. The light was amber for 4.2 seconds and red for 1.7 seconds before he entered the intersection. He was therefore 424 feet from the intersection when the light turned amber. To put it in perspective, counsel pointed out that 424 feet is more than the length of a regulation football field including the end zones.

41Counsel also provided another illustration. The bus the grievor was driving was 45 feet long. The light turned red when he was at least 1.7 seconds away from the intersection. At a rate of speed of 79 kilometres an hour, that means that he was more than 122 feet from the intersection or almost three bus lengths away when the light turned red. His evidence that he could not stop the bus in a safe manner is simply unbelievable. Even if we believe that he could not stop, then it was because he was speeding at the time. In counsel’s view, based on the jurisprudence dealing with similar situations, a two-day suspension in these circumstances is reasonable. Drivers of public vehicles are held to an extremely high standard on matters of safety. In support of this, counsel referred to Re Corporation of the City of Brampton and Amalgamated Transit Union, Local 1573 (1978) 1978 CanLII 3472 (ON LA), 19 L.A.C. (2d) 237 (Shime), Lunenberg County District School Board and Canadian Union of Public Employees, Local 1441 (1990) (Summerville) and The Corporation of the City of Calgary and Amalgamated Transit Union, Local 583 (1991) (Ponak).

42It was suggested by counsel for the employer that in assessing the reasonableness of the penalty I should also consider the testimony of the grievor that he would not have done anything different. If I find that the two-day suspension is a penalty within the realm of reasonableness, then counsel suggested that I should not interfere with it. He referred to three decisions by Arbitrator MacDowell in support of this proposition: Re Air Canada and CAW, Loc. 2213 (1993) CLB 14400 (MacDowell), Re St. Clair Catholic District School Board and O.E.C.T.A. (2007) 91 C.L.A.S. 123 (MacDowell) and Re Humber Regional Hospital and O.N.A. (2007) 162 L.A.C. (4th) 97 (MacDowell).

43Counsel for the union suggested that this case is about a good employee with an otherwise clear record who made one mistake. The kind of mistake that historically had attracted little or absolutely no discipline. The grievor was the first employee to receive an automatic two-day suspension pursuant to what was a brand-new employer bulletin.

44Union counsel pointed out that Mr. Pezzetti confirmed, in accordance with the letter of suspension given to the grievor, that the reasons for the discipline were the fact that the grievor had received a red light camera offence notice and that this offence negatively impacts upon the employer’s CVOR. Mr. Pezzetti also confirmed that the imposition of a two-day suspension was as a result of the automatic application of the new Bulletin.

45Mr. Pezzetti agreed that he did not take into account the grievor’s length of service or the quality of the grievor’s record and did not consider the numbers on the offence notice. Mr. Pezzetti did not do the fancy math done by counsel for GO Transit in final submissions. It did not factor into his decision. Union counsel suggested that I should not rely on the numbers referred to by employer counsel as: I have no way of verifying the numbers; I did not hear any expert testimony about how long it takes a bus to stop; nor did I hear what weight was used when the calculations were done, was the bus empty or full.

46It was pointed out by counsel for the union that the employer acknowledged that any rules put in place must be reasonable, that discipline must be for just cause and that I had the authority to substitute a lessor penalty if I determined that it was reasonable and appropriate to do so in all the circumstances.

47Counsel for the union suggested that the principle that similar cases must receive similar treatment is a universal precept of fairness and justice that has always been recognized in arbitration law. To not do so is improper discrimination. EV Logistics v. Retail Wholesale Union, Local 580 (2008) 169 L.A.C. (4th) 23 (Germaine), Re Canadian Broadcasting Corporation and Canadian Union of Public Employees (1979) 1979 CanLII 3998 (CA LA), 23 L.A.C. (2d) 32 (Shime), Re Partek Insulations Ltd. and C.A.W., Local 456 (1989) 1989 CanLII 9280 (ON LA), 3 L.A.C. (4th) 193 (Verity), Re Ontario Produce Co. and Teamsters Union, Loc. 419 (1991) 1991 CanLII 13419 (ON LA), 19 L.A.C. (4th) 169 (Haefling) and Inco Ltd. and United Steelworkers of America (1991) 1991 CanLII 13360 (ON LA), 20 L.A.C. (4th) 386 (Simmons) were relied upon in support of this argument. It is a fundamental principle in labour relations that equal offences attract equal discipline. In the case before me, the grievor has received a two-day suspension for conduct that in the past employees received little or no discipline for.

48Turning to the appropriateness of imposing a two-day suspension on the grievor in this case, counsel for the union urged me to consider that: the grievor had a clear record and this was his first offence; he has three years of service and no discipline of any kind on his record; it was an isolated incident; that it was not premeditated; he had a decision to make and he made a judgement call; this is a relatively minor offence; there was no harm done as there was no collision or complaints from the passengers or the public.

49In reply, employer counsel distinguished the cases relied upon by the union articulating the importance of equal treatment of employees, by pointing out that those cases dealt with situations in which employees were engaged in the same set of events at the same time, not separate events. In addition, the employer is entitled to change its approach to discipline based on similar circumstances as long as it puts employees on notice of the change, which GO Transit did in this case. It is clear that there has been an inconsistent approach to red light camera violations in the past and that continual infractions were occurring. Both of these things justify the adoption of a stronger response on the part of GO Transit.

50Counsel for the employer responded to the union’s argument that he had done some “fancy math” that I should not consider, by pointing out that there was nothing fancy at all about it. All he did was several simple calculations based on the undisputed numbers set out on the offence notice. Counsel suggested that all he did was give some meaning and context to the numbers on the notice that reflected the circumstances under which the grievor ran the red light. He argued that I should keep these numbers in mind, particularly in light of the grievor’s statement that he felt justified in running the red light and had no choice. And even more significant was his response that he would not do anything differently when presented with the same set of circumstances in the future.

51The issues before me are:

i) Did the employer have just cause to discipline the grievor for his conduct on September 16, 2009?;

Ii) Was the imposition of a two-day suspension just and reasonable in all the circumstances? Was it the appropriate level or quantum of discipline?

52The grievor testified that when he went through the red light, he did not realize it was red. The red light camera offence notice states that the light was red for 1.7 seconds before he entered the intersection and this was admitted by Mr. Sorial. The picture on the offence notice is very clear that well before the bus entered the intersection, the light had turned red. It is difficult to believe, based on this clear evidence, that the grievor did not know that the light was red.

53Frankly, I’m not sure which is worse. Failing to observe that the light was red and had been red for more than a second before he entered the intersection and the lack of attention that this implies, or realizing it was red and choosing to run the light. He stated that he did not know that the light was red when he entered the intersection. Why not? Was he paying attention? How could he fail to realize that when he entered the intersection, the light was red if he was looking into the intersection? I heard no evidence of any distractions either inside or outside the bus that could perhaps explain his failure to observe that the light was red. Failing to notice that he was entering an intersection when the light was red is in my view potentially more dangerous than realizing it was red and deciding that it was safer to proceed through it than to attempt to stop.

54The grievor also testified about how safety-conscious he was and how he had made a decision that it was not safe to stop. He indicated that he felt it was better to “proceed with caution” through the intersection then to attempt to brake. There was no dispute that the grievor was speeding when he approached the intersection. There is also no dispute that when he was approaching the intersection, the light was amber for 4.2 seconds and red for 1.7 seconds. This means that it was no longer green for a total of 5.9 seconds. That is a long time. I appreciate the creative visual images provided by counsel for the employer in his final submissions. However, in looking just at the numbers, it is apparent that the grievor was driving nine kilometres an hour over the speed limit and that the light was no longer green for 5.9 seconds before he even entered the intersection. I cannot agree that his actions on this date illustrated driving with caution. To the contrary, in fact. He was speeding and he ran a red light.

55I am satisfied that the employer had just cause to discipline the grievor. For the reasons set out above, whether or not Mr. Sorial knew that the light was red when he entered the intersection, his conduct on that day is deserving of discipline I turn now to the second question: In all the circumstances, is a two-day suspension appropriate?

56In assessing the appropriateness of the amount of discipline given to an employee, arbitrators consider many factors. One factor is the historical practices of the employer in dealing with instances or events similar to those giving rise to the discipline in the specific case under review. In other words, if in the past employees engaged in the same or similar behaviour, were they disciplined? And if so, what level of discipline was imposed?

57In the case before me, counsel for the union argued that it was unfair for the employer to give the grievor a two-day suspension for conduct that in the past had attracted little or no discipline. He suggested that the response of the employer in the case before me was unfair and excessive.

58Had the employer not notified employees that it was no longer going to adopt a lenient approach to red light traffic offences, I would have agreed with counsel. But that is not what happened. In this case, the employer posted a written policy on September 11, 2009, advising employees that effective immediately any employee assigned to a GO Transit bus that receives a red light camera offence notice will automatically be given a two-day suspension. The grievor read this Bulletin and was aware of the change in approach.

59One of the reasons why it is unfair to discipline employees differently for the same type of behaviour, is because employees are entitled to know that if they engage in certain behaviour, there will be consequences and what those consequences are likely to be. So if an employer traditionally gives employees a written warning for engaging in horseplay and then without any warning discharges someone for the same behaviour that traditionally attracted a written warning, that would be unfair. It would be something that arbitrators would likely consider in determining if a lesser penalty should be substituted.

60In the case before me, Mr. Sorial knew that the employer’s lenient approach to red light camera offences had ended. He knew that the employer was in the future going to take this type of conduct very seriously and impose a two-day suspension. Therefore, the historical approach to red light camera offences has been superseded by the Bulletin from the employer. There is no unfairness in this case as Mr. Sorial was well aware of the consequences of receiving a red light camera offence notice. While it is unfortunate that he is the first driver to be dealt with this way, he cannot claim that he did not know the almost certain consequences of engaging in the behaviour that led to the imposition of discipline in this case.

61Counsel for the union argued that the principle that similar cases must receive similar treatment is a universal precept of fairness and justice that has always been recognized in arbitration law. It is a fundamental principle in labour relations that equal offences attract equal discipline. To not do so is improper discrimination. It was suggested that in the case before me the grievor has received a two-day suspension for conduct that in the past employees received little or no discipline for. I completely agree with counsel’s articulation of these fundamental principles. However, what he does not acknowledge is the fact that the employer put employees on notice that their approach to dealing with red light camera offences was changing and that in the future they would respond by the imposition of more severe discipline. This is an exercise of the equally fundamental right of the employer to develop and implement reasonable rules in the workplace, which is (subject to my rejection of the automatic penalty as unenforceable) exactly what occurred in this case.

62It was suggested by union counsel that Mr. Sorial was a good employee who made one mistake. That may be true, but it was a serious mistake. One with potentially disastrous consequences. Although it is unfortunate that Mr. Sorial is the one to feel the impact of the new tougher employer stance on the infraction of running a red light, he was aware of the policy and cannot claim to be unaware of the ramifications of his actions.

63Upon carefully reading the letter of suspension, it is clear that Mr. Sorial was suspended for running a red light. It was this infraction that led to the imposition of discipline. The reference to the employer’s CVOR record and the fact that running a red light pose a threat for a potential collision were factors that were discussed, but it was the commission of the offence giving rise to the issuance of a red light camera notice that was the reason for the discipline. Therefore, even though the employer’s comment about the CVOR record was inaccurate, I do not see any reason to reduce the penalty based on this error, as it was not the basis for the discipline.

64Union counsel took the position that this was not a case in which it was appropriate to consider “post discharge evidence” or to take into account considerations not relied upon by the employer at the time that the discipline was issued. He suggested that remorse is not an issue in this case and that I should not consider the fancy math or the numbers on the notice itself, as they were not considered by management prior to the imposition of the discipline.

65Counsel for the employer pointed out that at the time the discipline was imposed it was based on the fact that the grievor ran the red light and, despite being given the opportunity to do so, did not offer any explanation or mitigating circumstances. Even if at the time the discipline was imposed the employer didn’t “do the math”, the other facts set out on the red light camera offence notice are relevant to my determination as to the reasonableness of the penalty imposed. These factors are also relevant to my assessment of the grievor’s response to the discipline. In particular, the grievor never accepted responsibility for running the red light or acknowledged any wrongdoing at the hearing. He maintained he would do the same thing again and showed no remorse for his actions.

66I agree that the “numbers” were not relied upon by Mr. Pezzetti in imposing the two-day suspension, as he automatically applied the two-day suspension that was called for by the Bulletin. But it is appropriate for me to take into account the grievor’s response to the numbers and his state of mind while testifying before me. This evidence is very relevant to my assessment of the grievor’s credibility and his culpability in running the red light.

67The grievor testified that at the time he entered the intersection, he did not realize that the light was red. When faced with the absolutely clear picture on the red light camera offence notice, he admitted that the light was in fact red. But he maintained that when he entered the intersection, he believed the light to be amber. He was very clear that even when confronted with the numbers and facts, he felt he had done nothing wrong and would do the same thing again. He still maintained that his decision had been the correct one.

68I’m not sure whether the grievor was intentionally trying to mislead me or whether he has convinced himself that he did the right thing in entering the intersection after the light had turned red. In any event, I find this evidence very problematic. The grievor’s refusal to accept that he may have made a mistake, in light of the fact that he was speeding and the light was no longer green for 5.9 seconds before he even entered the intersection, leads me to question his judgement and whether he has learned anything from this experience. I simply cannot accept or believe that if he had been paying attention, given the amount of time he had available, that he could not have safely attempted to stop the bus.

69I agree with union counsel that the imposition of a two-day suspension on the grievor in this case reflects a drastic change in approach by the employer. Given the severity of this change in approach from little or no discipline to a significant disciplinary response and in the absence of detailed evidence as to how or why the specific penalty of two days was arrived at by the employer, in all the circumstances I might have been persuaded to reduce the discipline in this case. But I am not going to do so as I do not feel that the grievor was completely candid while giving his testimony and his failure to acknowledge any wrongdoing troubles me. His assertion that in the same circumstances he would do the same thing again is inappropriate and contradicts the assertion by his counsel that what happened in this case was an isolated incident.

70I am also concerned that attempts were made to downplay the severity of the offence in this case. It is a violation of the Highway Traffic Act and exposed GO Transit to a penalty. Running a red light is a serious safety infraction. The grievor admitted that he placed himself, his passengers, pedestrians and other motorists at a greater risk of collision at the intersection and that by running the red light he created a negative image of GO Transit to the general public present at the intersection. I agree with counsel for the employer that whether or not any harm was done, or complaints from the public were received, is irrelevant. The fact is that speeding through an intersection in the manner in which the grievor did in this case is very dangerous.

71For all of these reasons, the decision of the employer to discipline Mr. Sorial by imposing a two-day suspension is upheld and the grievance is dismissed.

72In the event that the parties have any difficulties with regard to the interpretation or implementation of this decision, I shall remain seized.