Canadian Employment Law Today

Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Did the city have the right to terminate the driver's employment? OR Was there insuffi cient cause to dismiss the driver? IF YOU SAID the city had the right to termi- nate the driver's employment, you're right. e arbitration board noted that the estab- lished standard for termination of a proba- tionary employee was suitability. During the probationary period, the employer is free to assess the capabilities of the employee. e board found that the collective agree- ment didn't distinguish between probation- ary and regular employees, but the agree- ment did stipulate that new hires had a nine-month probationary period. "We agree that the law and arbitral juris- prudence supports the view that an agree- ment to a probationary period is in itself an agreement that diff erentiates a probation- ary employee from one who has completed probation and is a regular employee," said the board. "It is suffi cient for the parties to a collective agreement to agree that new hires are on probation for a period to invoke the suitability standard." e board found that if the standard for termination of probationary employees was "elevated to just cause," it would render the probation period meaningless. erefore, suitability remained the standard during probation. e board also noted that it didn't mat- ter whether the driver was not intoxicated when he reported for work, since his di- sheveled appearance and glossy eyes caused a supervisor to determine he was unfi t for work anyway. Since the driver had a fi ve-day suspension on his record and was deemed unfi t to work after reporting late, that was enough for the city to reasonably determine the driver wasn't suitable for regular employment as a city bus driver, the board said in dismissing the grievance. For more information see: • Saskatoon (City) and ATU, Local 615 (Read), 2015 CarswellSask 336 (Sask. Arb.). Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2016 Thomson Reuters Canada Ltd. All rights reserved. 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GST #897176350 City bus driver misses his stop THIS INSTALMENT of You Make the Call features a bus driver who was fi red dur- ing his probationary period. e 52-year-old driver began work with the City of Saskatoon driving a city bus as part of the city's transit system, on Feb. 9, 2009. He was required to serve as a proba- tionary employee for nine months before be- coming a regular full-time city employee, as stated in his employment agreement. On June 9, 2009, the driver failed to prop- erly secure the bus he was driving, resulting in the bus rolling onto the curb and hitting a transit sign. e driver was suspended for fi ve days without pay and required to at- tend a refresher course, as the fi rst step in its progressive discipline program. He was also warned that any other misconduct in the fu- ture would result in "an equally or more se- vere disciplinary sanction up to and includ- ing your dismissal." e driver was also a musician. When he took the job as a bus driver, he had decided to retire from the music scene, though he con- tinued to play gigs outside working hours. On the evening of Aug. 18, the driver and a friend played a gig. His performance ended at 10 p.m. and he stayed for awhile after- wards, drinking two beers. When he went to bed that night, the driver forgot to set his alarm. After he slept in, his roommate banged on his door and woke him up. He was late for work, so he didn't shower or brush his teeth. He quickly combed his hair, used mouthwash, and went to work. When the driver arrived at work, he swiped his access card but couldn't get in. It was standard procedure that if an employ- ee was more than 59 seconds late, his card would be rejected and he had to talk to a su- pervisor to get clearance to work, while his shift would be assigned to another driver. e driver had never been late before and was uncertain of what to do, so he asked the timekeeper, who informed him he could go home or sign in. e driver was three min- utes late at this point and wanted to work, so he went to the counter for clearance to work. e supervisor noticed the driver had glassy eyes and smelled of alcohol. e driver told him he had a gig the night before and had some drinks, but denied he was in- toxicated. He explained his eyes were glossy because he had only been out of bed for 13 minutes since he had slept in. e supervisor told him he thought it would be best if the driver didn't work, so the driver said he would "maybe go home." An investigative meeting was held the next day, where the driver denied he was im- paired when he had arrived at work. e city referred him to a specialist in alcohol depen- dency to determine the driver's "safety and reliability for safety-sensitive work." e specialist determined the driver didn't have an alcohol or drug disorder. e driver was co-operative and it was determined he didn't need further counselling. On Aug. 25, the city determined the driver was unfi t for duty when he reported to work on Aug. 19. Taken with his earlier suspen- sion, this led the city to decide the driver wasn't suitable for ongoing employment and terminated his employment immediately. e union grieved the dismissal, arguing the city didn't have just cause for dismissal. It also pointed out another driver had mul- tiple instances of absenteeism and tardiness but was only given a warning letter outlining performance expectations.

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