Canadian Employment Law Today

Canadian HR Reporter, 2019 Ontario truck driver fired after accident, speeding ticket reinstated Failure to remain at scene or report accident not grounds for suspension; Second incident not enough for discipline BY JEFFREY R. SMITH AN ONTARIO trucking company jumped to termination of a driver too fast following a couple of accidents and a speeding ticket, an arbitrator has found. Charles Cartwright was a truck driver for K-Town Delivery, a trucking company operating out of Kingston, Ont. Cartwright was employed with K-Town Delivery for about four years and received two writ- ten warnings in August and October 2018 about his poor attendance record. K-Town delivery had rules for drivers to follow, including "at fault" accidents subject to discipline "ranging from warning to dis- missal;" police charges while on duty sub- ject to suspension; and failing to complete an accident report would lead to dismissal. Speeding while on duty was also subject to dismissal, even on a first offence, accord- ing to the rules. ese rules were strictly enforced, as any traffic infractions or acci- dents involving the company's drivers af- fected the company's commercial vehicle operators registration (CVOR) with the Ontario Ministry of Transporation. On Nov. 3, 2018 Cartwright was pulling an empty trailer from Montreal to K-Town De- livery's yard in Kingston on the 401 express- way. According to Cartwright, he swerved the truck to avoid a deer and rubbed against the guardrail, causing damage to the truck. He called an off-duty manager — he didn't have the number of his current manager — to report the accident and said the truck was drivable and no-one else was involved. e off-duty manager said if no-one else was in- volved he didn't need to call the police and he could drive the truck back, but he should call his on-duty manager. Cartwright left a message for his man- ager. When the manager called back, he was already on the road. e manager told Cartwright to complete an accident report, but Cartwright said there were no accident report forms in the truck. A subsequent check of the truck found the front hub was severely damaged and the front suspension broken off. e company determined the truck had been unsafe to drive and should have been towed. ree days later, Cartwright was caught by police and charged with speeding, go- ing 103 kilometres per hour in an 80 km/h construction zone. Construction work- ers were present, so the infraction cost K- Town Delivery double points on its CVOR. When Cartwright arrived at the yard, he also didn't chock the wheels on the trailer he dropped off. 2-week suspension e next day, the company suspended Cart- wright for two weeks. e suspension letter cited the main reasons for suspension were leaving the scene of an accident without reporting it to police, driving a truck with damage rendering it unsafe to drive and the speeding charge. e letter also noted that Cartwright's at-fault accident caused $20,000 in damage to the truck — though an outside mechanic later testified it was clos- er to $3,000 — and his manager had found accident report forms in the truck, contrary to what Cartwright had said. In addition, his paperwork had not been handed in at the end of his shift, as per company policy, and his trip sheet didn't include the empty trailer he had pulled from Montreal or his mileage. e company said Cartwright was unreliable and "a serious safety concern and that any further problems would be cause for immediate dismissal." On Dec. 12, 2018, Cartwright was mak- ing a delivery at a site with what he initially thought was a circular drive. However, he realized the entrance he had pulled into was actually a dead end with rock outcroppings, so he backed out. While doing so, he hit a rock and tore off a mud flap. He then turned the truck and trailer around and made the delivery at the proper entrance. When Cartwright returned to K-Town De- livery, he completed a written report of the in- cident, as he was aware of his duty to report all incidents in the wake of his suspension. e company sent a driver to the site where the incident took place, but the driver didn't find any rock outcropping that Cart- wright could have hit. e company de- cided it was more likely Cartwright wasn't paying attention and hit the loading dock, as parking was challenging at the location. Taking into account Cartwright's previous misconduct and suspension, K-Town De- livery decided to terminate his employment effective Dec. 13. After the union grieved both the suspen- sion and the dismissal, an arbitrator found that the discipline in both cases was inap- propriate. Managers didn't direct employee to follow policy e arbitrator found that Cartwright should not be culpable for leaving the scene of the accident without reporting it to po- lice. Cartwright spoke to two managers fol- lowing the accident and neither directed him to do so; nor did they query him on the extent of the damage to the truck. His only misconduct in this incident was telling the managers the damage wasn't significant and driving it and not completing the ac- cident report. Since the most serious allegation of mis- conduct — not reporting the accident to police and leaving the scene — wasn't prov- en, the suspension should be decreased to one week, said the arbitrator. As for the incident involving the torn- off mud flap, the arbitrator found this was not even a disciplinary offence, let alone a culminating incident for termination. e company didn't thoroughly investigate the incident and the damage was minimal. "A damaged mud flap is more in the na- ture of the normal wear and tear on tractors flowing from the nature of the business it- self," said the arbitrator. e arbitrator determined that K-Town Delivery was likely dissatisfied with Cart- wright's performance and attendance and used the damaged mud flap incident as a reason to terminate his employment. How- ever, it didn't reach the level of just cause. e arbitrator ordered K-Town Delivery to reinstate Cartwright to his employment and compensate him for all lost wages and benefits from the date of his termination to his reinstatement, as well as compensation for one additional week of pay for the sus- pension reduction. For more information see: • K-Town Deliveries Inc. And USW, Local 343-16, Re (June 24, 2019), D. Randall-Arb. (Ont. Arb.). Canadian Employment Law Today | 3 Cases and Trends The worker wasn't culpable for leaving the scene without reporting to police, as the managers didn't direct him to do so.

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