Canadian Employment Law Today

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GST #897176350 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. 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 Should the company have given the driver another chance? OR Did the company have just cause for dismissal? Cornered bus driver doesn't tell the truth THIS EDITION of You Make the Call fea- tures a bus driver who got into trouble after she looked at her cellphone while driving. Cheryl Lebrun was a bus driver for the HandyDART bus service, a door-to-door transit service for people with disabilities in the Vancouver area who weren't able to use regular transit. Lebrun's duties included driving a minibus and she had no discipline on her record over 21 years of service. e bus company's employee handbook included a policy banning the use of person- al cellphones or any non-company-issued electronic device while operating a company vehicle. is was in line with the British Co- lumbia Motor Vehicle Act, which also pro- hibits cellphone use while driving. Dec. 20, 2012, was a cold, slushy and wet day in Vancouver. Lebrun was driving an empty HandyDART bus when she turned left and struck a parked vehicle. Lebrun called the offi ce to report the accident, took pictures of the scene and started an incident report. Another employee helped pry the bus' front bumper from the tire so Lebrun could drive the bus to the shop. Damage to the bus and the car totalled about $18,000. Lebrun indicated on the incident report that at the time of the accident, the road was wet with slush, lighting was dim, and it was raining hard. She said she saw the parked car at the last minute and tried to swerve, but then she could only try to brake before hit- ting the car. Four days later, the operations manager and road supervisor met with Lebrun to dis- cuss the accident. ey told her nothing had been decided yet and her truthfulness during the interview would help decide the outcome. Lebrun maintained that she couldn't see where she was turning and tried to swerve before hitting the parked car. She said she was distracted by the weather and then also men- tioned "by maybe" looking at her cellphone. Management viewed video of the accident captured by a camera on the bus that showed the driver and the area in front of the vehicle. e clip showed Lebrun taking her right hand off the steering wheel just before she turned left, reaching into her coat pocket, and pulling out her cellphone. She opened her phone and looked down at her screen for nearly three seconds, during which she crossed the lanes of the road she was on and turned left. She took the corner too wide and rear-ended the car that appeared to be parked legally and in full view from the driver's seat of the bus. In the video, Lebrun appeared to look up just before impact. e monitoring technol- ogy showed she applied the brakes just be- fore hitting the parked car, but the bus made no lateral motion to indicate she swerved in an attempt to avoid the car. Lebrun and her union steward refused to watch the video because they said such video was only to be used for coaching employees, not discipline. e operations manager and road supervisor followed up with more ques- tions and Lebrun stated she had been waiting for a message from her brother about a "se- rious family matter" and when she heard the cellphone chime, she quickly looked at it. She insisted she didn't use the phone or talk on it. e company terminated Lebrun's em- ployment on Jan. 7, 2013, for reckless con- duct while driving a bus and violating com- pany policy on cellphone use while driving. It also mentioned her dishonesty during the investigative meeting when she tried to mis- lead management on whether she used her phone while driving and how it contributed to the accident. Lebrun claimed that while she was aware of the law against using cellphones while driving, she thought this referred to talking on the phone, not quickly glancing at it. She acknowledged that following her dismissal she came to understand it was illegal to have a cellphone in one's hands and looking at it while driving. She said she had a "momen- tary lapse of judgment" and wouldn't repeat it. IF YOU SAID the company had just cause for dismissal, you're right. e arbitrator found there was no doubt Lebrun looked at her cellphone while driving and this con- tributed to her accident. As a professional driver, she was expected to be aware of the law, even if the company didn't provide spe- cifi c training on it and the policy. "(Lebrun's) actions breached an impor- tant and fundamental safety obligation to pay due care and attention at all times while driving," said the arbitrator, adding that the poor weather conditions at the time made it even more important that she pay attention. e arbitrator noted that Lebrun's years of discipline-free service, the fact the accident appeared to be an isolated incident, and her claim it would never happen again worked in her favour, but there were concerns about the lack of judgment she demonstrated in the conditions she faced that day. In addition, Lebrun's attempt to mislead the company's investigation by omitting her cellphone use in the incident report and denying it in the interview raised further concerns. e arbitrator determined Lebrun's dis- honesty compounded the seriousness of her unsafe conduct damaged the employment relationship and gave the company reason to skip the progressive discipline approach. e dismissal was upheld. For more information see: • MVT Canadian Bus Inc. and ATU, Local 1724 (Lebrun), Re, 2014 CarswellBC 4255 (B.C. Arb.).

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