Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2015 July 22, 2015 | Canadian Employment Law Today 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. CREDIT: BIKEWORLDTRAVEL/SHUTTERSTOCK by saying he was unaware anyone was "al- legedly hurt." e manager was concerned because emergency stops were to be used only to avoid a collision, due to the risk of harm to passengers. Drivers were also required to walk the length of the bus after such a stop to find out if anyone was injured, and complete and incident report at the end of the shift. In addition, a proper emergency stop should involve pulling over and braking smoothly. Welsman came to work that day but was sent home pending a investigation into the incident. At the investigatory interview, Welsman described the events and said he had hit the brake harder than he intended, but no one was injured. He was surprised there was an investigation and thought he was "being hung out to dry" because of the disgruntled passenger's report. e manager determined Welsman had made the emergency stop to punish, not protect, certain passengers on the bus without regard for other passengers. Welsman didn't accept responsibility for his actions and he didn't follow correct procedure during and after the stop. Whistler Transit terminated Welsman's employment on Nov. 21, 2014, based on these factors and his previous disciplinary record. Welsman challenged the dismissal, denying there were any injuries on the bus. He said the passenger who reported the injury didn't seem to be injured at the time and probably injured himself playing rugby, one of the passenger's recreational activities. He also maintained his previous discipline was unfair. e arbitrator found late-night bus runs after the bars close in Whistler could be expected to be a "gong show" with raucous passengers, and the public depended on bus drivers to demonstrate "skill, judgment, common sense and detachment…to provide safe passage." ese situations were discussed at driver health and safety meetings and Whistler Transit had its established policies and procedures. e arbitrator also found there was no reason for the injured passenger to lie about his knee injury or what happened on the bus. His account of the incident was credible and Welsman's argument that he could have been injured elsewhere and decided to file a false report was not. e arbitrator found Welsman showed "a pattern of escalating actions" during the bus run, starting with extended stops and his smoke break, knowing it would provoke some of the passengers. It culminated in "an emergency stop with reckless disregard to the consequences of the safety of all passengers in his care," said the arbitrator. Welsman's instances of previous discipline were irrelevant to the latest incident, other than to illustrate his unwillingness to acknowledge his misconduct, which he continued in the investigation into the emergency stop incident and his attempt to paint himself as a victim and the injured passenger as someone trying to falsely accuse him, said the arbitrator. Welsman's misconduct was serious and his failure to accept responsibility for it made it unlikely he wouldn't act similarly in the future, said the arbitrator. e dismissal was upheld. For more information see: • Whistler Transit Ltd. and Unifor, Local 114, Re, 2015 CarswellBC 1387 (B.C. Arb.).

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