GSB#2013-1016
UNION#G-21-13-BOE
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587 (Minos)
Union
- and -
The Crown in Right of Ontario (Metrolinx - GO Transit)
Employer
BEFORE
Owen V. Gray
Vice-Chair
FOR THE UNION
Carlo Di Giovanni Ursel Phillips Fellows Hopkinson LLP Counsel
FOR THE EMPLOYER
Amanda Hunter Hicks Morley Hamilton Stewart Storie LLP Counsel
HEARING
November 4, 2013 and January 30, 2014
DECISION
1GO Transit hired the grievor on February 16, 2011. It trained him as a bus driver, and he worked in that capacity thereafter. On May 2, 2013 the bus he was driving collided with a post embedded in the sidewalk beside the bus entrance to the Union Station GO Bus terminal in downtown Toronto. The employer concluded that this was a preventable collision. The grievor was suspended May 3, 2013 pending review of his employment status. Having regard to the grievor’s prior record, the employer terminated his employment on May 16, 2013. He grieved.
2The issue in this arbitration of his grievance is whether a lesser penalty should be substituted for discharge. The union concedes that the employer had cause to discharge the grievor from his position as a bus driver, but contends he should have been allowed to retain his employee status on an unpaid leave, so he could apply for other jobs when and as vacancies were posted, in accordance with the collective agreement’s provisions in that regard. For reasons that follow I am persuaded that a lesser penalty should be substituted.
Background
3After he completed his training the grievor started regular driving duties on April 9, 2011. A Record of Verbal Counsel records that on April 12, 2011 the grievor was counselled about two things he failed to do that day. He failed to advise his supervisor by radio that he was running late due to traffic conditions, for which his explanation was that he assumed everyone was running late. He also failed to report a mechanical problem (the battery compartment door on his bus was swinging open) until the end of the shift.
4Although no document was put before me, it is common ground that in or around July 2011 the grievor was counselled for failure to report for duty as scheduled, which resulted from his having incorrectly assumed that he would have a day off as a “birthday floater” holiday, when in fact he was not entitled to such a holiday that early in his employment.
5Another Record of Verbal Counsel records that on September 26, 2011 the grievor was spoken to about an incident on July 25, 2011. A truck driver had reported that a GO Transit bus “tore the mirror off his truck” that day. When questioned about this on September 26, 2011, the grievor said he had been driving northbound on the Don Valley Parkway when he heard a slight thump. He noticed that his mirror was pushed back, but “wasn’t sure if he had made contact … there was no indication on my part that we were close enough.” An instructor deemed the collision preventable. The grievor was reminded that any contact with a bus is to be reported immediately.
6Article 4.14(2) of the parties’ collective agreement provides that letters of counselling or instruction are non-disciplinary.
7On November 22, 2011 the grievor was suspended for three days for an incident on November 9, 2011, in which the bus he was driving collided with a stationary lamp pole, causing substantial damage, and he failed to remain at the scene or report the collision until the end of his shift.
8On May 2, 2012 the grievor was suspended for five days because the Red Light Camera System had issued an Offence Notice as result of his having failed to stop for a red traffic signal on April 11, 2012. He was also required to attend a retraining session.
9On March 20, 2013 the grievor was issued a seven day suspension as a result of a preventable collision in which the side of the bus he was driving came into contact with the driver’s side rear view mirror of a parked car. There is no suggestion in the letter of suspension that he failed to report this in a timely fashion. The letter of suspension warned him that “any further incidents of this nature will likely result in a termination of your employment with GO Transit.” He received further training on March 21, 2013.
10Sometime before the culminating incident the grievor applied for a job in the mailroom because, as he testified, he found that driving a bus “wasn’t going to be my forté,” and he wanted to try other positions in GO Transit. He did not get the job because he was not the most senior qualified applicant.
The culminating incident
11At about 7:30 p.m. on May 2, 2013, the grievor was driving a bus into the Union Station Bus Terminal, making a right hand turn from the northbound curb lane of Bay Street into the driveway to the bus platforms. That driveway and the sidewalk on the driveway’s south side both curve to the right at the entrance. The area was busy; a lot of pedestrians cross the driveway in both directions. When the way in was clear the grievor drove slowly around the curve and up to the bus platform. In the course of doing so he says he first felt a bump and a tilt of the bus, and then farther along felt another bump and then the bus tilted back. His interpretation of those sensations was that the rear wheels on the open side1 of the bus had ridden up on the curb on the south side of the driveway and then come down off the curb again. He did not look in his right side mirror when he had either of these sensations, to see whether his interpretation of them corresponded with reality or to check whether its having gone up on the curb presented a danger to the bus or to anyone or anything else.
12When his bus arrived at the platform he did not get out. He just started loading passengers for his trip to Square One in Mississauga. When the bus was nearly full another driver told him that his bus had a flat tire. There had been no indication on the dashboard of the bus that any of its tires had lost pressure. He exited the bus, and saw that the rim of the leading rear wheel on the open side of the bus was bent out of shape and the tire mounted on it was flat. The body of the bus ahead of the rear wheel well was also damaged. The grievor alerted dispatch, the bus was taken out of service, and the grievor wrote an incident report.
13It is apparent that the grievor made his turn too soon or too sharply or both. The rear of the bus rode up on the sidewalk so far that the open side made contact with a substantial bright yellow (apparently concrete) post set into the sidewalk roughly half a metre back from the edge of the curb. The initial point of contact between the post and the bus was ahead of the rear wheel well. As the bus continued to move forward the rim of the leading rear wheel came up against the post and was quite substantially bent out of shape. There is no challenge to the employer’s evidence that while making a turn a driver should be checking rear view mirrors on both side of the bus, that it is improper to drive up over a curb, that when that does occur the driver should stop and check before moving forward, and that the grievor would have known all of this as a result of his training.
14It is clear from his testimony that the grievor did not check his right side mirror during the turn because other aspects of the situation had a higher priority for him. He made assumptions about the significance of the sensations he felt, without verifying those assumptions visually. Had he done as he had been trained to do he would have seen the danger in his right side mirror before the collision occurred and would have been able to avoid it.
15The Superintendent of Bus Operations who made the decision to terminate the grievor’s employment testified that in his view the trust on which an employment relationship depends was no longer present. He said the grievor had “failed to comply” on “many occasions,” that the grievor’s record showed that he had failed to report that he was running behind despite having been told to do so, and that on “several occasions” he had been involved in collisions that he had failed to report. He said he found it hard to believe that in the culminating incident the grievor had not been aware that the bus had been damaged as soon as that occurred – indeed, as soon as the bus made contact with the post and before the tire rim struck it.
16The decision-maker acknowledged that the grievor had been trained in selling tickets, the operation of the Presto system and customer service generally, and that there had been no problems with his customer service or his attendance apart, from the one time for which he had been counselled.
Argument
17The parties agree that the employer had cause to remove the grievor from his bus driver position. Their dispute is about whether the employer had cause to terminate his employment altogether, or should have allowed him to remain as an employee on unpaid leave while he looked for another vacant position within GO Transit for which he was suited and the most senior applicant.
18Counsel for the employer argued that in order for the grievor to be “reinstated to a different position” that remedy must be consistent with the collective agreement, and that an obligation to place an employee in another position must be negotiated, not imposed. She referred particularly to the first sentence of Article 4.9 of the parties’ collective agreement, which I will quote in full:
4.9 The Grievance Settlement Board or the arbitrator shall not have any jurisdiction to alter or amend in any way the provisions of this agreement; to substitute any new provisions in lieu thereof, to give any decision inconsistent with or contrary to the terms and conditions of this agreement; or in any way to modify, add to or delete from any provision of this agreement. This prohibition shall not affect the powers conferred upon the Grievance Settlement Board or the arbitrator pursuant to The Crown Employees Collective Bargaining Act 1993.
She also referred to Article 8, which governs the filling of vacancies, noting particularly that the portion of it dealing with “medical placements” (Article 8.8(1)) says that such placements must be “mutually agreed between the parties.” She submitted that it would be inconsistent with Article 8 to reinstate the grievor to another position.
19Employer counsel argued that the grievor’s history here shows not only his lack of skill as a driver but also failings unrelated to driving skill – for example, his failure to advise when running late and his failure to report collisions when they occurred. In that vein she invited me to conclude that the grievor had known of the collision on May 2, 2013 at the instant it occurred, and failed to investigate then because he knew it was the end of the line for him.
20Union counsel acknowledged that there should be some discipline for the culminating incident, but argued that discharge was excessive and that the employer should have considered simply removing the grievor from his position as a driver while allowing him to retain employee status on unpaid leave while he sought some other position in accordance with the provisions of Article 8 governing the filling of vacancies.
21Union counsel suggested that the period of unpaid leave be two years, noting that under Article 7.4(2) an employee who for non-medical reasons loses a licence or other prerequisite for her or his position may be placed on a leave of absence without benefits for a period of up to eighteen months, pending recovery of the qualification. He adopted the observations in Brown & Beatty2 at §7:4420 (last sentence):
As well, arbitrators have ruled that employers have a positive duty to … consider what other positions are available for employees who are found incapable of fully discharging their employment responsibilities.
and at §7:3520 (last sentence):
As a general principle, arbitrators have expressed the opinion that before an employer decides to terminate someone for not doing the job properly, they must establish that the employee is unlikely to respond to some lesser sanction such as a transfer or demotion to another position.
He also referred to some of the awards cited for those propositions in that text, and to other awards.3 He invited me to find that the grievor had been unaware of the damage until it was brought to his attention, and to take note that there had been no problems with the grievor’s customer service and (after the birthday floater misunderstanding) no problems with attendance. There had been no problems with his attitude toward or cooperativeness with supervisors. He submitted that the grievor had not engaged in dishonesty, and that a distinction should be made between willingness and ability.
22Union counsel submitted that the circumstances addressed by Arbitrator Solomatenko in a recent Toronto Transit Commission award4 are quite similar to those here. The grievor there had been discharged from employment after driving a street car for less than two years, during which time he had had four preventable accidents and two switching violations and then a culminating incident in which he failed to stop his street car in time to avoid collision with a vehicle ahead of him. The arbitrator sustained the employer’s decision to dismiss the grievor from the position of street car driver, but not its decision to dismiss him from employment. As for the latter, the arbitrator said this:
66 In the alternative, the union has requested that the grievor be reinstated into a non-driving position on grounds that there is no reason in these circumstances to consider that the employment relationship has been irreparably damaged or broken. I concur that this is not an employment relationship that has the hallmarks of being irreparably broken and dismissal from all employment with the Commission would in my view be an excessive disciplinary response in these circumstances.
67 At no time was there any suggestion or evidence that there was a problem with the grievor’s attitude, attendance or work ethic. The Assessment of Defensive Driving reports invariably noted that the grievor was receptive to the counselling he received during those sessions. The source of the problem appears to have been related to his performance as an operator. From the Commission's perspective, it stands to gain from the continued employment of someone who has otherwise integrated himself into the requirements of being a Commission employee and in whom it has invested a certain amount of resources in training and orientation into the workplace.
68 In my view, this is an appropriate case to award that the grievor be considered for any position for which he is qualified, other than an operator’s position. Given the short duration of his employment in a position in which he was unable to meet the required standard of performance, and with less than a year of service following the completion of probation, I would not consider this an appropriate case to award full compensation for the period since his dismissal. In the event that there is a non-driving position for which the grievor is qualified, I find that he is entitled to compensation equivalent to five months’ pay at the rate applicable to that position.
69 The grievor’s dismissal is therefore rescinded subject to the conditions outlined above. I shall retail jurisdiction to address any issues arising out of the implementation of this Award, in the event the parties are not able to reach agreement in that regard.
In dismissing an application for judicial review of that award, the Divisional Court (Justice Malloy) observed that
6 Both s. 48(17) of the Labour Relations Act and Article of [sic] the Collective Agreement contemplate the imposition of lesser penalties than outright dismissal. There is a large body of long-standing case authority in which arbitrators have held that reassignment is appropriate where the employee is not capable of performing at an acceptable level in one position, but where the employment relationship has not been fundamentally broken and the employee could therefore be properly employed in a different and lesser capacity … .
7 In our view, transferring (or demoting) the grievor to a non-driving position was an option that was open to the Arbitrator. Having determined the grievor should not be a driver, it was within the power of the Arbitrator to consider a penalty lesser than outright dismissal. …
23Union counsel observed that subsection 48(17) of the Labour Relations Act gives this Board the authority to substitute a penalty, and that nothing in the collective agreement is an obstacle to my exercising that discretion in the manner suggested.
24In reply, employer counsel repeated that what the union is asking does interfere with the collective agreement. She observed that the parties had identified in their collective agreement the circumstances that may lead to an unpaid leave, and had not included these. She argued that while this is not a case of theft or assault, the trust required for continued employment is wider than that. It was not just a matter of the grievor’s being a terrible driver. He was also someone who has failed to follow instructions and failed to report when he “messed up.”
Reasons For Decision
25With certain modifications not pertinent here, subsection 48(17) of the Labour Relations Act, 1995,5 forms part of the Crown Employees Collective Bargaining Act,6 the statute that governs these proceedings, by virtue of s.2(1) of the latter Act. Subsection 48(17) provides that
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 the circumstances.
This is one of the powers that in Article 4.9 of their collective agreement the parties have expressly agreed are not constrained by that article.
26The fact that the collective agreement provides for unpaid leaves in certain circumstances does not mean that substituting a penalty involving an unpaid leave in other circumstances interferes with the collective agreement. The remedy that the union seeks here is not inconsistent with the provisions of Article 8; it would merely enable the grievor, as an employee, to access whatever other jobs may be available to him pursuant to that article.
27I agree with the union that there is a distinction to be made between willingness and ability when responding to failures in performance. The distinction may sometimes be easier to state than apply. It is trite that an employer should respond with progressive discipline to apparent unwillingness to comply with its reasonable rules and standards of performance, and that discharge may become appropriate when the employee’s misconduct in that regard continues despite progressive discipline. On the other hand, it is not appropriate to punish an employee for failures of performance if the employee was incapable of the expected performance and there is nothing that could have been done, by the employee or the employer, to remedy the lack of capacity. The reason for an employee’s failure to meet required standards may sometimes fall somewhere between willful disobedience and innocent incapacity, on a spectrum in which words like “reckless,” “negligent,” “careless,” or “inattentive” may be used to mark different positions between the two extremes.
28An employer’s obligation to consider other positions for an employee with performance problems arises most clearly and strongly when the employee is truly incapable of fully discharging the duties of her or his position as it is presently constituted, which was the premise of the remarks in Aro Canada Ltd.7 on which union counsel relied. Here the union does not contend that the culminating incident was entirely due to the grievor’s innocent inability; its agreement that the incident merited some discipline is inconsistent with that view. The grievor had been generally able to drive a bus without collision. He was careless on this occasion, and not for the first time.
29Abiding by the employer’s requirement that a collision be reported immediately is not a matter of driving skill, and the grievor’s failure to do so in November 2011 when he had been counselled earlier for that very sort of failure was a concern to which the employer responded with discipline. The incident of March 20, 2013 seems to suggest that by then he had learned that lesson, at least. I do not agree that a failure of a similar sort was manifest in the culminating incident. I am not persuaded that the grievor was aware of the damage and chose to ignore it until the other driver saw it. I find that he was unaware of it until then for the same reason that the damage occurred: he was not devoting sufficient attention to his surroundings as he drove the bus into the station.
30A decision whether to respond to disciplinable behaviour with discharge or some lesser penalty requires consideration not only of the probability that the employee’s behaviour can be reformed by the lesser discipline, and the employment relationship thereby repaired, but also the risk to the employer if the lesser penalty does not reform the employee. A disciplinary demotion was an option the employer could have considered, but it is generally thought that “[b]ecause the purpose of a disciplinary demotion, like all sanctions, is to encourage the employee to change his or her behaviour, it cannot endure indefinitely.”8 At the outset, and until the first day of hearing, the employer had had to consider the risk that might be associated with the grievor’s returning to driving duties at some point after a period of suspension and/or demotion. Without some proof that the grievor was prone to accidents as a result of some incapacity that could not be remedied by discipline or treatment, it was doubtful that the employer could have unilaterally barred the grievor from bus driving on a permanent basis without his and the union’s agreement.
31The considerations to be balanced changed considerably when the risk associated with the grievor’s ever returning to bus driving was taken out of the balance, as the union did on the first day of hearing. The question that remained thereafter was whether the grievor could be a reliable, trustworthy employee in some other position. I am persuaded that he could, if reinstated on terms that relieve the employer of any risk of his being restored to bus driving duties.
32One question that arises in crafting this remedy concerns the discipline to be substituted. It must involve a substantial suspension, to ensure that the remedy creates no misimpression among other employees that carelessness in driving carries little consequence for someone content to be limited thereafter to non-driving jobs, and to make it clear to this grievor that if and when he does find another position he will be starting with a record that leaves him no room for further carelessness of any kind. A suspension of six months would serve that purpose.9
33To ensure that the suspension has the last-mentioned effect, the period from the beginning of the suspension to the date on which the grievor actually resumes work in some new position will have to be excluded in calculating the “sunset” periods specified in Article 4.14(2). That alteration of the grievor’s collective agreement rights is best effected by an agreement of the parties, as is permanent disqualification from positions that involve driving a bus and a definition of the length of time after which the grievor’s employment will be deemed terminated if he has not by then applied for a posted vacancy for which he is ultimately the successful applicant. That period should be 18 month from the end of the suspension.
34I understand that the essential duties of some jobs at GO Transit may include driving buses from one place to another otherwise than in the course of providing the employer’s passenger service. The permanent disqualification will include any such job.
35I also understand that the essential duties of some jobs at GO Transit include driving motor vehicles smaller that buses, in duties for which a class “G” licence is the only provincial driver’s licence required. It was the union’s contention that the grievor’s disqualification should not extend to such jobs. I assume that in connection with any application for a job of that sort any applicant could be required to give the employer access to their personal driving and insurance records, so it can determine whether she or he satisfies a requirement that an applicant be a safe driver. If I am wrong in that assumption, then the grievor’s providing access to such records in connection with an application for any such job shall be part of the agreement to be made with the employer by the union and grievor.
36Accordingly, upon the union and the grievor entering into an agreement with the employer containing the terms contemplated in the preceding three paragraphs, the grievor will be reinstated to employment on those terms effective May 16, 2013, with no loss of seniority but without compensation for loss of pay or loss of benefits for the period from May 3 to November 2, 2013, which will be treated as a disciplinary suspension on the grievor’s record. The grievor shall be put in the position he would have been in if he had been treated from and after November 3, 2013, as a bargaining unit employee without a position and on unpaid leave, but with rights under Article 8 to apply for any vacant job other than one that involves bus driving duties. That means, among other things, that his entitlement to a job, and to compensation for lost wages for the period between November 3, 2013 and the date this award is implemented will depend on whether he would have been the successful applicant for a job vacancy that arose and was filled during that period. I leave it to the parties to work out, if they can, whether that would have been so and, in that event, what the consequences going forward will be for the grievor and the incumbent of the job. If in that period no job vacancy arose for which the grievor would have been the successful applicant, then the grievor will simply continue on unpaid leave on the terms contemplated by this decision.
37If either the union or the grievor chooses not to enter into an agreement with the employer as aforesaid, then this grievance shall be deemed dismissed.
38I remain seised with any issue concerning the implementation of this decision that the parties are unable to resolve themselves.
Dated at Toronto this 7th day of April 2014.
Footnotes
- This refers to the side of the bus that is to the driver’s right when he is driving the bus.
- Canadian Labour Arbitration (4th ed., Canada Law Book) - footnotes omitted.
- Calgary Handi-Bus Assn. v. Amalgamated Transit Union, Local 583, [2000] A.G.A.A. No. 45 (Jolliffe), Greyhound Canada Transportation ULC v. Amalgamated Transit Union, Local 1374 (Morrow Grievance), [2009] C.L.AD. No. 405 (Tettensor), Re Aro Canada Ltd. and International Assoc. of Machinists, Lodge 1817, 1975 CanLII 2056 (ON LA), [1975] O.L.A.A. No. 51, 10 L.A.C. (2d) 81 (Beatty), Ottawa (City) v. Amalgamated Transit Union, Local 279 (Gagnier Grievance), [2013] O.L.AA No. 376 (Burkett), British Columbia School District No. 68 (Nanaimo) and Canadian Union of Public Employees, Local 606, [1996} B.C.C.A.AA No. 590 (Kelleher), Campbell River School District No. 72 and Canadian Union of Public Employees, Local 723 (Peacey Grievance), [1998] B.C.C.A.A.A. No. 186 (Glass), Toronto Transit Commission v. Amalgamated Transit Union, Local 113, (unreported, February 22, 1983) (Egan).
- Toronto Transit Commission and Amalgamated Transit Union Local 113, [2012] O.L.A.A. No. 328; jud. rev. denied [2013] O.J. No. 1290 (Ont. Div. Ct.)
- S.O. 1995, c. 1, Sch. A.
- S.O. 1993, c. 38, as amended.
- above, note 3.
- Brown & Beatty, note 2, at §7:4250.
- Coincidentally, the union’s with prejudice concession came almost exactly six months after the grievor’s pre-discharge suspension on May 3, 2013. Had the concession been made earlier or later it would still have been my view that the appropriate penalty suspension should be a six month suspension. Had the concession come later, the period during which the grievor should have had access to other jobs would have started later, on the date when the concession was made, and might have been shorter.