Canadian Employment Law Today

Unsafe trucker sent down the road Truck driver's unsafe passing of other trucks and poor attitude validated employer's safety concerns BY JEFFREY R. SMITH A federally regulated trucking company had just cause to dismiss a driver for two inci- dents of unsafe driving within a short period of time, an adjudicator has ruled. Daniel Niccolls was a truck operator for Goulet Trucking, a trucking company based in Calgary with offices in Shaunavon and Unity, Sask. Goulet's trucks carried crude oil, crude oil emulsion, fresh and produced water, and blowback fluids. Goulet took the safety of its employees, cli- ents, the public and the environment serious- ly and had a safety policy that reinforced that philosophy. e policy stipulated that failure to comply would result in discipline and pos- sibly dismissal. Niccolls acknowledged re- ceiving and reading a copy of the policy when he started working with the company. In addition to providing employees with copies of the safety policy, Goulet trained its employees on various systems necessary for certain work, including transportation of dangerous goods and Workplace Hazardous Materials Information System (WHMIS). Niccolls was trained on all of these. On Feb. 13, 2014, Niccolls was driving a tractor-trailer truck along a Saskatchewan highway. A witness saw him "pass another tractor-trailor unit through an intersection and a blind curve all against a double solid (line) with oncoming traffic" and reported it to Goulet. Niccolls' supervisor discussed it with Niccolls and told him he needed to follow the employee manual and abide by the rules of the road and conduct himself in a courteous, professional, and safe man- ner while operating Goulet equipment. He also warned Niccolls that further infractions would lead to a write-up and "possible sus- pension." Second unsafe driving incident two months later Nearly two months later, on April 9, a truck driver for another company was travelling on the same highway. He was towing a wide load while another driver operated a pilot vehicle in front of him. e driver reported seeing a tractor-trailer driven by Niccolls come up behind him quickly and pull out over a solid centre line without signaling to pass. ere was oncoming traffic and when Niccolls was partly past the driver's door, he began to pull back into the right lane with- out signaling, is caused the other truck to slam on his brakes and swerve to avoid Nic- colls and oncoming traffic. e trailer went into the ditch, but the driver was able to re- cover without losing total control. Shortly after, the driver of the pilot vehicle saw Niccolls pull out to pass him without sig- naling over solid lines once again. He pulled back into the right lane quickly, causing the second truck to brake and pull into the ditch to avoid him and other traffic. e two driv- ers were concerned for their own safety as well as others, so they reported the incident to Goulet. Goulet's health and safety manager met with Niccolls to get his side of what hap- pened. He later reported that Niccolls had a cavalier attitude and said he was "simply passing a couple of vehicles." He initially said he didn't remember if there was a solid centre line, but later admitted he wasn't sure because he "was not paying attention to the paint on the road, but people he was going to kill." Still later, Niccolls said "there may have been a solid line." Niccolls also said he pulled back into the right lane when he saw the towed load of the other vehicle in his side mirror, but didn't see the truck's cab. e health and safety man- ager concluded Niccolls wasn't clear of the first tractor-trailer when he pulled back into the right lane. e company viewed the inci- dent as serious and viewed Niccolls' attitude towards it as poor, so it suspended him in- definitely pending further investigation. Goulet's vice-president of trucking op- erations considered the fact that the latest incident was the second within two months where the company had received complaints about Niccolls' unsafe driving. Coupled with Niccolls' attitude that he didn't acknowledge doing anything wrong and he seemed to feel like it was his highway to drive the way he wanted, Goulet felt his misconduct was se- rious enough to warrant dismissal. It termi- nated Niccolls' employment. Niccolls filed an unjust dismissal com- plaint with Human Resources and Develop- ment Canada demanding more than $33,000 in unpaid wages, overtime pay, pay in lieu of notice, severance pay, and other costs. e adjudicator found that Goulet re- quired a higher standard of conduct from its employees that operate heavy equip- ment and this was reasonable, given safety concerns. And there was no doubt Niccolls committed the misconduct, as there were witnesses who reported both incidents to the company. e adjudicator also found the fact Nic- colls was guilty of two similar incidents of misconduct within a relatively short time to be serious. e fact that both incidents in- volved heavy equipment and hazardous ma- terials in the tractor-trailers Niccolls was op- erating added to the safety risk. In addition, Niccolls violated the Saskatchewan Traffic Safety Act — a particularly bad thing to do for a professional truck driver — and refused to acknowledge his misconduct. e two incidents were not only close to each other, but occurred less than two years after Niccolls started employment with Gou- let. e company attempted corrective dis- cipline after the first incident, but this didn't stop the second breach of its safety policy. Given these factors, the adjudicator found dismissal was appropriate. Because there was just cause, Niccolls wasn't entitled to notice or severance pay, said the adjudicator. For more information see: • Goulet Trucking (1989) Ltd., and Niccolls, Re, 2016 CarswellNat 550 (Can. Lab. Code Adj.). Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends 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. The incident was the second within two months that led to complaints about the employee's unsafe driving

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