Canadian HR Reporter

Canadian HR RepoRteR april 6, 2015 emploYmeNt lAw 5 High Impact Evaluation ™ Don't just evaluate learning—Drive Impact! Join Canada's evaluation authorities, Dr. Lynette Gillis and Allan Bailey, to learn Canada's new High Impact Evaluation model and toolset. Strengthen evaluation practice—and go beyond! Use this results-focused model to ensure training is aligned and locked to the needs of the business. Drive performance, productivity and bottom-line results. Writing Effective Multiple-Choice Tests Gain professional confi dence in writing multiple-choice tests. Multiple-choice tests can be effective, practical, and objective. Unfortunately, the research shows a majority of MC tests are poorly constructed, deeply fl awed, or unfair. Ask yourself: How accurate are our tests? Are they clear? Fair? Legally defensible? Learn to write multiple-choice tests that are valid, effective, and fair! TORONTO Ottawa May 26-27 October 13-14 June 15-16 July 13-14 December 1-2 TORONTO Ottawa May 29 October 16 June 18 July 16 December 4 We do more than measure impact. We drive it! Tel. 905.823.3367 email: info@cfl i.ca www.cfl i.ca/workshops Mention code HRR15 for Special Discount truck driver didn't get the message Employee downplayed misconduct that breached company policy, the law An Alberta employer had just cause to dis- miss an employee who was caught using his cellphone while driving, an arbitrator has ruled. e employee was a truck driver for BFI Canada, a waste manage- ment company in Edmonton. He was hired by BFI's predecessor in 2001 as a labourer and became a truck driver in 2006. In 2010, the company merged with BFI and the employee's em- ployment continued uninterrupt- ed. In 2013, he was disciplined four times for different types of misconduct, including a verbal warning for damaging a trailer while loading, a written warning for damaging a structure while backing up a loader, a one-day suspension for failing to carry out a pre-trip inspection of his truck, and a three-day suspension for insubordination. Three-day suspensions were commonly the final step in BFI's progressive discipline policy. e employee disagreed with the discipline in each case and said he was being harassed by manage- ment and blamed for misconduct by other employees. He suggested the company wanted him to leave and the union should negotiate a severance package "to walk away." The original company had one of the worst safety records in the industry for injuries and fatalities. BFI was determined to change this with training and a new culture, including discipline when necessary. And drivers were required to take periodic safety quizzes. BFI's safety policy included a restriction on cellphone use — only hands-free devices could be used while driving and any texting or emails were prohibited while in transit, which was consistent with Alberta's distracted driving legislation. e policy indicated violations would be subject to discipline up to termination. BFI trained its drivers on cellphone safety and the employee acknowl- edged he understood the policy. Drivers commonly received calls from the company dispatch- er and customers while in their vehicles and they purchased their own phones and hands-free de- vices. If they didn't have a hands- free device, they had to deal with calls when they were stopped. Each BFI truck had a dashboard video camera that was monitored by a third-party company. e cameras recorded activity both inside and outside the truck, and any notable information was sent to BFI in a report. Dash cam recorded driver On Nov. 13, 2013, BFI received a report on a recording in the em- ployee's truck from the day before. e district manager determined the employee was using a cell- phone while driving. e video showed the employee looking down at the phone while the truck was in motion for eight seconds before putting it in its cradle and looking out the window. e manager considered this "egregious and dangerous," par- ticularly since it appeared some nearby gas pumps and pillars obscured the side view, making it difficult to see other trucks or pedestrians. However, the employee claimed the truck was hardly moving, he didn't see anyone nearby and he was holding his foot over the brake when he looked at his cellphone. He said he was either receiving a call or hitting the speed dial but- ton to make a call before putting the phone in its cradle to use his Bluetooth hands-free device. He claimed he was not actually using the handheld cellphone and he had done nothing wrong. BFI considered the fact the employee had been disciplined four times in the previous year and, in each case, he had tried to downplay the seriousness of his misconduct or made an excuse, rather than accept responsibility. With his most recent miscon- duct considered dangerous — and also a violation of Alberta legisla- tion — his failure to take respon- sibility yet again, and the cumula- tive effect of his previous miscon- duct, BFI decided to dismiss the employee for cause. e employee filed a grievance, arguing he did not violate BFI's cell- phone policy or distracted driving legislation and he only wanted to start the call before he got going so he could use his Bluetooth. Arbitrator weighs in BFI followed a progressive dis- cipline approach, starting with a verbal warning, progressing to a written warning and then sus- pensions, found the arbitrator. e employee's final misconduct for which he was dismissed came after a three-day suspension that was, in most cases, considered the final step of the disciplinary ladder before termination, regardless of how other employees were disci- plined for similar misconduct. And despite the employee's ex- planation, the video depicted him driving his vehicle while using his cellphone, a violation of company policy as well as Alberta law while also being dangerous, said the arbitrator. "It takes but a moment for a person, animal or vehicle to sud- denly come in harm's way," said the arbitrator. "e (employee) should not have been driving at any speed while paying attention to his phone rather than the road, a rule of which he was fully aware." e arbitrator also found the employee's attitude showed no recognition of the danger of his misconduct and little indication he learned anything from the discipline or would do anything differently. Given these facts and his previ- ous discipline over a short period of time, the arbitrator ruled dis- missal was appropriate. For more information see: BFI Canada Inc. and TC, Local 362 (Dismissal), Re, 2015 Carswel- lAlta 237 Alta. Arb.). Jeffrey R. Smith is the editor of Ca- nadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@ thomsonreuters.com or visit www. employmentlawtoday.com for more information. jeffrey smith Legal View

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