Canadian Employment Law Today

April 1, 2015

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends Truck driver doesn't get the message on cellphone use while driving Employee downplayed misconduct that breached company policy and the law By JEffrEy r. SmiTh An AlberTA employer had just cause to dismiss an employee who was caught hold- ing and using his cellphone while driving, an arbitrator has ruled. e employee was a truck driver for BFI Canada, a national commercial and resi- dential waste management company in Ed- monton. e employee was hired by BFI's predecessor in March 2001 as a labourer and became a truck driver five years later. In 2010, the company merged with BFI and the employee's employment continued un- interrupted. He had no accidents or infrac- tions on his record until 2013, when he was disciplined four times for different types of misconduct, including a verbal warning for damaging a trailer while loading, a writ- ten 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. ree-day suspensions were commonly the final step in BFI's pro- gressive discipline policy. e employee disagreed with the disci- pline in each case and said he was being ha- rassed by management and blamed for mis- conduct by other employees. He suggested the company wanted him to leave and the union should negotiate a severance package "to walk away." At the time of the merge, the original company had one of the worst safety records in the industry for injuries and fatalities. BFI was determined to change this with train- ing and forming a new culture, including discipline when necessary. Drivers were re- quired 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 was prohibited while in transit, which was consistent with Alberta's dis- tracted driving legislation outlawing driv- ing while "holding, viewing or manipulating a cellular telephone." e policy indicated violations would be subject to discipline up to termination. BFI trained its drivers on cellphone safety and the employee acknowledged he under- stood the policy. Drivers commonly received calls from the company dispatcher and customers while in their vehicles and they purchased their own phones and hands-free devices. If they didn't have a hands-free device, they had to deal with calls while their vehicle was 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 recorded by the third-party company and sent to BFI in a re- port. e employee received orientation on the cameras. Dash cam recorded driver on cellphone On Nov. 13, 2013, BFI received a report on a recording in the employee's truck from the day before. e camera was triggered by an uneven road surface and recorded the em- ployee holding a cellphone while pulling out of a gas station. e district manager viewed the record- ing and determined the employee was using a cellphone while driving. e video showed the employee looking down at the phone while the truck was in motion for eight sec- onds before putting it in its cradle and look- ing out the window, all while the truck was moving. He considered this "egregious and dangerous," particularly since it appeared the gas pumps and pillars at the station ob- scured the side view, making it difficult to see other trucks or pedestrians. e employee claimed the truck was hardly moving, he didn't see anyone else nearby, and he was holding his foot over the brake when he looked at his cellphone. He was on private property at the time. He said he was either receiving a call or hitting a speed dial button to make a call before put- ting the phone in its cradle to use his Blue- tooth hands-free device. He claimed he was not actually using the handheld cellphone and did not think he had done anything wrong. BFI considered 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 make an excuse rather than accept responsibil- ity. With his most recent misconduct con- sidered dangerous — and also a violation of Alberta legislation — his failure to take responsibility once again, and the cumula- tive effect of his previous misconduct, BFI decided to dismiss the employee for cause. e employee filed a grievance, arguing he did not violate BFI's cellphone policy or distracted driving legislation and he only wanted to start the call before he got going so he could use his Bluetooth on the actual call. e arbitrator found BFI followed a pro- gressive discipline approach, starting with a verbal warning, progressing to a written warning and then suspensions. e final act of misconduct for which the employee was dismissed came after a three-day suspen- sion, which was considered the final step of the disciplinary ladder before termination regardless of how other employees were disciplined for similar misconduct. e arbitrator also found that despite the employee's explanation, the video depicted him driving his vehicle while using his cell- phone, 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, ani- mal, or vehicle to suddenly 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 dan- ger of his misconduct and little indication that he learned anything from the discipline or would do anything differently. Given these facts and his previous discipline over a short period of time, the arbitrator ruled dismissal was appropriate. For more information see: • BFI Canada Inc. and TC, Local 362 (Dis- missal), Re, 2015 CarswellAlta 237 Alta. Arb.). The employee claimed nobody was nearby, but he didn't look out the windshield for 8 seconds

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