Worker breached policy leading to collision, but didn't try to hide or delay reporting it
An Ontario bus driver deserves suspension following a collision that damaged a bus, but not dismissal, an arbitrator has ruled.
The worker was a motor coach operator for Ontario Northland Transportation Commission (ONTC), a Crown agency providing transportation services in Northern Ontario. She was hired in 2009.
In April 2010, the worker suffered a work-related injury that kept her out of work for several years. She returned to work in January 2018 with a permanent accommodation agreement that an instruction that she “avoid work involving cleaning products or work on a cleaning crew.” There were no other restrictions, although the worker was off for two weeks in August 2018 with anxiety.
On May 5, 2019, the worker was operating a motor coach on a route from North Bay, Ont., to the Yorkdale Mall bus terminal in Toronto and back. The route involved a 14-hour day for the worker.
During the trip, the coach’s door wasn’t working properly and she had been told by the previous driver to “jiggle, kick or pull the door” for it to close. The worker reported difficulty with the door 15 minutes after the start of her shift.
Bus collision
At the Yorkdale bus terminal, the worker was reversing from the platform at the beginning of her return trip to North Bay. She was relying on the backup camera and left mirror, although company policy required her to use the rearview mirrors on both sides of the bus and not the camera. According to the worker, she hadn’t been provided any training on the use of the backup cameras. There were 27 passengers on board.
The bus backed into a cement pole, causing about $30,000 of structural damage to the bus. The worker made a judgment call that the bus was roadworthy and the lights were working, so she decided to continue to North Bay. She reported the incident to dispatch about 25 minutes after it happened at the next stop, saying she had caused “some very visible damage” to the bus’ body but it was still drivable. She indicated she would take pictures and complete a collision report when she returned to North Bay, also noting the unrelated door issue. ONTC didn’t provide any further instructions.
The worker’s collision report stated that she “clipped” a cement pole. ONTC investigated the incident and the worker said that she “backed into” the cement pole and, when asked what she would have done differently, said that she didn’t know.
The worker also said that she had talked to a mechanic after the accident and discussed all the vehicle’s fluid levels and the door, but not the damage. She said she didn’t realize she had violated the operator’s manual, but she didn’t stay at the terminal to report the collision there because she had anxiety and PTSD from a previous work-related collision that had kept her off work for years. ONTC didn’t have any medical documentation that the worker couldn’t perform any of her job duties due to mental health issues.
The worker added that she had been “fighting with the door” her entire shift and it was “a tough day, it was a long shift.” The dispatcher was also interviewed and said that the worker had been more concerned with the door problem than the road worthiness of the bus.
Termination after bus accident
On June 5, 2019, ONTC terminated the worker’s employment for violating company policy by using the backup camera instead of rearview mirrors and the operator’s manual by not promptly reporting the collision and staying at the scene, causing a preventable accident, and driving the bus in an unsafe condition that created danger to passengers. The company also argued that the worker was “evasive, dishonest, and inconsistent during the investigation and failed to show remorse or take responsibility.”
The union grieved the dismissal, arguing there was no deliberate misconduct or deceit, and the worker was in an anxious mindset following the collision. It maintained that the worker had suffered an anxiety attack but still reported the incident within a reasonable amount of time, and her anxiety had affected her judgment.
The arbitrator noted that the worker was subject to a permanent accommodation agreement, but her restrictions were related to chemical sensitivity and ONTC had no documentation of a need for accommodation for anxiety. The worker had not requested any accommodation or disclose that her anxiety affected her ability to perform her job duties, said the arbitrator.
The arbitrator found that the collision with the cement pole was cause for discipline, as she was careless in not being appropriately aware of her circumstances and causing damage to the bus.
However, the arbitrator found that the delay of 25 minutes in reporting the collision didn’t deserve discipline and there was no evidence that ONTC would have done anything differently had she reported it immediately. In addition, the company didn’t indicate that the worker had done anything wrong at the time the worker reported it, the arbitrator said.
No instruction from employer
As for the roadworthiness of the bus, the worker indicated there had been “visible damage” and the responsibility for assessing its roadworthiness transferred to ONTC. However, it didn’t do so and it didn’t provide any further instructions, leaving the worker to continue to North Bay with the bus in the condition in which it was in – and to which the company acquiesced, the arbitrator said.
The arbitrator also found that the worker was not dishonest or failed to be forthcoming in the investigation. Although she described the collision as “clipping” the bus, she reported the damage and didn’t try to hide any details. However, she failed to show sincere remorse, said the arbitrator.
The arbitrator considered that the worker had 10 years of employment with ONTC – although interrupted by a long absence – and a clear disciplinary record. She was also dealing with a difficult shift that day, given the door issues and incidents with passengers. However, she was responsible for operating and protecting an expensive piece of equipment with a high standard of diligence, the arbitrator said.
The arbitrator determined that dismissal was excessive and a three-month suspension without compensation would be appropriate. However, given the concerns over whether the worker’s anxiety might affect her ability to do her job, the arbitrator directed ONTC and the union to address the remedy and possible accommodation themselves, with the instruction that the worker shouldn’t be put in a better position had she only served a three-month suspension. This should involve the worker providing satisfactory medical information about her fitness to work and both parties engaging in an accommodation process, the arbitrator said.
See Ontario Northland Transportation Commission and Teamsters Canada Rail Conference (Shaver), Re, 2023 CarswellNat 6488.
