GSB#2009-1803

Union#G-4609-BO

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Farrell)

Union

• and -

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

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Ian Fellows Green & Chercover Counsel

FOR THE EMPLOYER

Glenn Christie Hicks Morley Hamilton Stewart Storie LLP Barristers and Solicitors

HEARING

January 13, 2010, March 8, 2010, March 26, 2010, September 22, 2010, October 22, 2010, November 17, 2010.

Decision

1The grievor, Kim Farrell, had been employed as a bus driver with Metrolinx Go Transit since 2005. She was terminated from her employment in April of 2009 for allegedly using her cell phone while driving her bus from Toronto to Hamilton. The allegations arose from a customer complaint about her rude conduct on that route and the fact she was texting a message on her cell phone while driving. Attached to that written complaint was a photograph of the grievor taken by the customer on her cell phone. That photograph shows the grievor with her right hand on the steering wheel while looking down at a cell phone in her left hand.

2The Employer called the grievor to a meeting to discuss this complaint during which she denied using her phone on the day in question. When she was confronted with the photograph, she stated that she had used her phone to check the time but maintained that she had not used it for any other purpose. She specifically denied texting messages on her phone while driving the bus. The Employer determined that termination was appropriate and the grievor filed a grievance challenging that termination.

3There is no dispute about the facts outlined above. The Union acknowledged that, given those facts, some discipline was justified, but took the position that discharge was excessive. It asked me to substitute a lesser penalty. It is my view that the discharge should stand. I come to that conclusion based on events that transpired immediately after the termination and continued up to and during the hearing.

4Subsequent to her termination the grievor applied for Employment Insurance benefits and her application was denied. She appealed and, in preparing for that appeal, she answered several questions related to the Employer’s statement on the Record of Employment that she had been terminated for misconduct. She answered in the negative when asked whether she had committed a safety infraction, whether there had been any witnesses to the alleged infraction and whether there had been the possibility of injury to any person and/or damage to the Employer’s property. When asked why she had been terminated, she stated that she had signed a Conditions of Continued Employment in which she had agreed to operate her vehicle in a safe manner for a period of 21 months or face additional discipline. She told the referee that she had completed 14 of those 21 months and that the Employer had used this alleged misconduct to invoke the terms of that earlier agreement to discharge her. It should be noted at this time that the grievor had also provided the Referee with her cell phone records but advised him that she had been told that Rogers would only supply her text message records under subpoena.

5These events occurred over the period of time from her termination in August to the denial of her appeal in November. In December the grievor wrote a letter to the Employer in which she acknowledged that she had used her cell phone to send text messages and had acted in a rude manner to a customer. She acknowledged this conduct was unacceptable and expressed regret for having conducted herself in that manner. She also extended an apology to the customer who had filed the complaint. I note that even while she was offering this apology, she continued to make a distinction between her first offence and this one by arguing that she had not “used” her cell phone in the latter.

6It was the Union’s submission that the grievor had made efforts to apologize to the Employer but her overtures had been rejected. Mr. Bryan Randall, Employee Relations Advisor for Go Transit, testified that those apologies were always conditional on her reinstatement, which the Employer refused to consider. An issue arose concerning the time, place and/or status of those discussions but that evidence is not relevant to my decision to reject the Union’s assertion that the grievor sincerely apologized and she was remorseful.

7I have determined that her behavior throughout the proceedings is a clear indication of her refusal to accept responsibility for her actions and her continued efforts to deny and/or minimize her conduct. Her attitude towards this incident is seen in her initial denial when confronted with the complaint, then her qualified concession that she was only checking the time, her attempt to mislead the referee hearing her EI appeal and her evidence and demeanor at the hearing. In the circumstances it is difficult to accept her confession was honest and sincere.

8At the hearing on March 23, 2010, when Mr. Christie asked the grievor how many times she had texted during the Toronto-Hamilton route, she stated she could not remember. When pressed for an estimate, she was unable to respond. When was presented with the record of her text messaging that had been provided by Rogers, she again had no response. She maintained that she could not remember how many times she had used her phone. In fact, she had sent or received 23 text messages during her route that day.

9The Employer took the position that the evidence is clear and that there are no mitigating factors to persuade me to moderate the penalty. Her past record does not assist her. It consists of a letter of warning in September 2007 for a missed work assignment, a letter of warning in March of 2008 for using her cell phone while driving her vehicle through an intersection, a one day suspension for talking on her cell phone while operating her vehicle on May 13, 2008, and a termination for improperly using her cell phone while operating her vehicle. The Conditions of Continued Employment referred to above were executed as a resolution of the grievance she had filed subsequent to her termination. Those minutes stated, in part, as follows:

1. Ms. Farrell will follow the directions of Supervisory Staff and abide by the policies and procedures of Go Transit. Further, any incident of insubordination, in the future, will result in discipline up to and including discharge.

2. Ms. Farrell agrees to operate her Go Transit vehicle in a safe manner at all times and follow the training that she has been provided. Any future incidents where the employee is observed using a cell phone or any other prohibited devise while operating her Go Transit vehicle and result in discipline up to an including discharge.

3. Ms. Farrell agrees that she has read these conditions of continued employment, in full, and understands the terms and conditions. The employee further agrees that she has been provided ample opportunity to review this document and seek advice from her Union representative.

4. These conditions of reinstatement and the letter of termination will remain in effect and on Ms. Farrell’s file for a period of twenty-one (21) months.

In summary, the Employer submitted that the grievance should be dismissed based on the facts of the instant case and the history of the grievor’s past employment history.

10In support of its position the Employer relied on the following cases: Re Corporation of the City of Brampton and Amalgamated Transit Union, Local 1573 (1979), 1978 CanLII 3472 (ON LA), 19 L.A.C. (2d) 237 (Shime); Re Toronto Transit Commission and Amalgamated Transit Union, Local 113 (1985), 1985 CanLII 5411 (ON LA), 22 L.A.C. (3d) 271 (D.B. Black); Re ITT Automotive Inc. and Canadian Auto Workers, Local 199 1995 CanLII 18342 (ON LA), 51 L.A.C. (4^th) 308 (J. Rose); Re Voith Fabrics and U.N.I.T.E, Local 720T (2002), 2002 CanLII 78975 (ON LA), 110 L.A.C. (4^th) 62 (R. Roberts); Re P.W. Transportation Ltd. and P.W. Transportation Drivers Association (2003), 2003 CanLII 89652 (ON LA), 114 L.A.C. (4^th) 289 (R. Kennedy); Re Canadian General Tower Ltd. and United Steelworkers of America, Local 862 (2003), 2003 CanLII 89591 (ON LA), 118 L.A.C. (4^th) 193 (R. McDowell); Re Madawaska Doors Inc. and United Food and Commercial Workers International Union, Local 175 (2004), 2004 CanLII 94682 (ON LA), 127 L.A.C. (4^th) 378 (R. Dumoulin); Re Sysco Food Services and Canadian Auto Workers, Local 414 (2004), 130 L.A.C. (4^th) 23 (O. Gray); Re Island Slipform Inc. and Operative Plasterers and Cement Masons’ International, Local 919 (2007), 164 L.A.C. (4^th) 211 (R. Blasina); Re Lemare Lake Logging and United Steelworkers Union, Local 1-211 (Berry) (2008), 174 L.A.C. (4^th) 118 (S. Lanyon); Re Waste Management of Canada Corporation and Teamsters, Local Union No. 419 (November 13, 2009), unreported (Jasbir Parmar).

11The Union submitted that the grievor’s actions, while deserving of discipline, were not so serious that discharge was the only option open to the Employer. She admitted her wrongdoing and apologized to the Employer and the rider for the way she acted on August 11, 2009 and she was remorseful.

12It urged the Board to adopt the reasoning of the Board in the Re Board of School Trustees, School District No. 68 (Nanaimo) and Canadian Union of Public Employees, Local 606 (1996), 1996 CanLII 20276 (BC LA), 60 L.A.C. (4^th) 129 (S. Kelleher). In that case the grievor was a nine year employee who was terminated from his job as a school bus driver for crossing a railway crossing when the lights were flashing, thus endangering the lives of the students on board the bus at the time. This was the fourth incident the grievor had been counselled about in the preceding months. He had been seen driving erratically driving 70 k/hr in a 50k/hr zone, the driving 10 miles per hour over the speed limit the next day and driving through red flashing lights 10 days after that. The employer determined that he was guilty of gross negligence. He had failed to protect the students on the bus and he could not be trusted with their care. The grievor grieved this termination and the Board allowed the grievance. Although it agreed that he had been guilty of negligence, and had operated the school bus in a manner that jeopardized the safety of its passengers, it reinstated him to a job he was eligible to perform but not that of bus driver. The issue of compensation, if any, depended on the availability of employment in an alternative position. The Union asserted that a similar result should prevail in the instant case. The grievor could be reinstated on similar terms, recognizing the Employer’s concerns about her driving a bus.

13The Union also relied on the case of Re Halifax Regional Municipality Metro Transit and Amalgamated Transit Union, Local 508 (200), 158 L.A.C. (4^th) 431 (I. Christie) in which a bus driver was terminated from his employment for giving a gift to a young student that the School Board and Trustees believed was inappropriate. The grievance was allowed and the grievor reinstated on the grounds that the Board was unable to say with any certainty that the grievor’s motives were improper. He was open about the circumstances involving the gift. He had given it to a friend of the recipient to pass along with a message telling the girl to make sure she had her parent’s approval to call him. He claimed he was just repaying her for a gift she had given him. The Board was satisfied that the grievor was guilty of a lapse of judgment which was deserving of discipline but not termination. It reinstated him, substituting a one month suspension and a direction that he not be assigned the same route in the future. The Union suggested a similar approach is appropriate in the instant case.

14I agree that in all cases of discipline the first question is whether the conduct at issue is deserving of discipline and, if the answer to that is yes, what discipline is appropriate in the circumstances. The final decision on the level of discipline depends, in part, on the conduct complained of, the past record of the employee and the length of service. Other mitigating factors are to be considered in determining whether to reduce the penalty and by how much.

In the instant case there is no question that the grievor acted in a manner contrary to the Employer’s clear rules and policies. She must have known that it was against the law to use a phone while operating a vehicle. There can be no question that she knew her actions were unacceptable. She had been disciplined previously for the same infraction. In fact, she had been terminated and reinstated on the condition that she not repeat that conduct. And yet, she did. Not only did she repeat her actions but, when confronted, she insisted she had done nothing wrong. When confronted with the picture of her looking at her cell phone, she played word games, arguing that using her phone to check the time was not the same as using it to make calls. She suggested she did not understand the former was against the rules. When asked why she had not been honest at the discipline meeting with the Employer and acknowledge her misconduct, she stated she did not understand what he was asking her. I reject her evidence on this point. She had been terminated previously for using her cell phone while operating her bus. She simply cannot claim she did not understand what the Employer was asking.

15I find she was evasive, vague and conveniently forgetful throughout her entire testimony. In the circumstances, I have decided there are no mitigating factors to persuade me to meliorate the penalty. Despite previous discipline for the same behaviour in the past, she deliberately did it again. She obviously did not appreciate the seriousness of her actions. She is responsible for the safety of her passengers and, by her actions, placed them in an unsafe situation. The fact that she had been terminated in the past should have been a clear and unequivocal signal that the Employer would not tolerate such misconduct. She either did not or would not get the message. There is no reason for the Employer to have any confidence she would not do it again.

16Her unwillingness to learn from her past mistakes, although significant, was not the primary reason to dismiss her grievance. It was her refusal to be honest and forthright throughout the process and, more particularly at the hearing, that is fatal to her plea for reinstatement.

17For the reasons outlined above, the grievance is dismissed.