Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2014 October 15, 2014 | Canadian Employment Law Today to catch the bus. She didn't have a fare ready, so the driver told her to take a seat and she could do it once they were on their way, since it was busy. Once on the road, the driver asked the passenger to come to the front and pay. However, the passenger – under the impres- sion she wouldn't have to pay until they ar- rived at the destination – had her earphones on and didn't initially hear. e driver claimed the passenger asked him rudely if she had to pay now and gave him a handful of coins. After asking if she had any bills, the driver had to pull over to count the coins and there wasn't enough to cover the fare. Another passenger offered to pay the difference so the trip wouldn't be de- layed further, but the driver declined, saying he would find another destination her fare would cover. e passenger apologized to the other passengers and the driver said he was going to bite his tongue. Metrolinx received a complaint from the girl's mother accusing the driver of being verbally abusive. She claimed the driver an- nounced to the whole bus he would have to pull over for "this rude, inconsiderate girl," would kick her off the bus, and after she apologized he said, "I could say some pretty nasty things but I will hold my tongue." e driver denied making the announce- ment and threatening to kick the girl off the bus, though he acknowledged she was em- barrassed and upset. Metrolinx determined the driver did not meet its customer service standards. Given his previous discipline for similar misconduct, Metrolinx terminated the driver's employment, effective Nov. 28. A couple of weeks after the termination, the driver sent a letter to Metrolinx admit- ting he made mistakes, including his reac- tions to noise on the bus and his "bite my tongue" comment in particular. He pledged not to make those kind of mistakes again if given another chance. Stages of discipline examined e arbitrator accepted Metrolinx's as- sertion that helping passengers load and unload baggage from the bus bay was part of the operator's job. By refusing to do so, the driver was refusing to do part of his job. If his back was too injured to do it, he shouldn't have reported to work as ready to go, said the arbitrator. e arbitrator also found the various suspensions were reasonable as part of a progressive discipline process, since he had already been disciplined for poor behaviour with a customer. e arbitrator acknowledged that the driver's behaviour on the day he refused to pick up the customer "raised a reasonable question about whether there was some- thing wrong with (him) that would interfere with his properly operating a bus." But he driver had agreed to serve that customer again with courtesy and his state of mind on Aug. 21 "is consistent with his struggling with the difficult choice of having to actually honour his undertaking or suffer the conse- quences." Ultimately, the driver's behaviour was insubordinate, which was a "serious employment offence" for which the five-day suspension was justified, said the arbitrator. e arbitrator found the February 2013 suspension was warranted but should be re- duced to five days since the December 2012 suspension was unwarranted and five days was considered an appropriate length at that point in the disciplinary process. As for the culminating incident on Nov. 7, the arbitrator found it was reasonable for the driver to ask the girl for another form of payment other than the coins since he was trying to avoid further delays, but his behav- iour after that and his comment served only to increase the tension and embarrass the girl, while GO would expect good customer service to alleviate her distress. e arbitrator noted that the driver didn't seem to try to mislead Metrolinx about any of the incidents and acknowledged at least some part in each of them. He also had 12 years of service and a significant amount of time had passed between his previous disci- pline and the culminating incident. In addi- tion, the letter the driver wrote following his termination – though a little late – took re- sponsibility for his misconduct and showed a willingness to mend his ways, which was the purpose of discipline in the first place, said the arbitrator. ough the driver had pledged to do bet- ter following other instances of discipline, the formal letter "increases my estimate of the probability that the (driver) has finally 'got it' that he has to do what the employer has directed even if it is different from what he would otherwise have chosen to do," said the arbitrator. Metrolinx was ordered to reinstate the driver with a three-week suspension for his last instance of misconduct. However, since the letter came after the driver's termina- tion, it could not have been considered in the decision to dismiss him, so the arbitrator awarded no compensation for lost earnings. See Ontario (Metrolinx – GO Transit) and ATU, Local 1587 (Kay), Re, 2014 CarswellOnt 11952 (Ont. Grievance Settlement Bd.). CRedit: wellphoto/ShutteRStoCk About the Author JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www.employmentlawtoday.com for more information.

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