Clear policies, training made it 'difficult for the worker to claim that he didn't understand the policy,' says lawyer offering insights for HR
An Alberta arbitrator has upheld the dismissal of a bus driver following an incident in which the driver used a cellphone while operating a bus.
“Having a well drafted policy, preparing training on the policy, and having employees sign off on having read the policy and attended the training, it really created the foundation for the employer to be able to uphold its policies and enforce them where it may otherwise not have been able to,” says Dylan Snowdon, a labour and employment lawyer at Carbert Waite in Calgary. “It’s a reminder that good policies and good training really can be relied upon [to justify discipline and dismissal].”
The worker was a coach bus driver for Red Arrow Motor Coach Limited, a motor coach company based in Alberta, who was hired in August 2022.
Red Arrow trained the worker on its rules and procedures, as it did every driver it hired. This included the company’s distracted driving policy and a cellphone use policy, the latter which forbid coach bus drivers from touching any handheld device such as a cellphone while operating a vehicle. All of the policies were available electronically for employees to review at any time.
The worker received five days of training when he joined the company, plus additional training on the safe driving policy after the bus accident tragedy in Humbolt, Sask. The worker also was a police officer for 32 years and spent some time as a cruise ship security officer before joining Red Arrow, so he felt that he was well-trained in safety protocols. They day after he joined Red Arrow, he signed off on the cellphone use policy.
Safety a priority at bus company
Red Arrow previously terminated the employment of two employees for cellphone use while driving, as it prided itself on being a safe bus operation and worried that its reputation was at risk when drivers didn’t follow its safety policies or traffic laws.
On May 22, 2023, the worker was preparing to leave Red Arrow’s depot in Edmonton when he discovered that the tablet normally used by drivers to log their driving status wasn’t available. He logged in on his cellphone, which was common practice for drivers when tablets weren’t working properly. However, he was running late and forgot to change his status from “on duty” to “driving” before he departed on his route.
Soon after he left the depot with passengers on his bus, the worker stopped at a red traffic light, pulled out his cellphone, and updated his status. When the light turned green, he resumed driving.
The worker believed that he could safely use his cellphone to update his status because there was no chance of an incident while the bus was stopped at the traffic light. He checked all directions to ensure the intersection was safe and he believed he had done his due diligence.
Later during the same trip, the worker pulled over to the side of the road to change his status with his cellphone.
Workplace policy violation
The worker’s activities were recorded on the onboard dashboard video system. Red Arrow reviewed the video and issued a complaint to the worker for using a cellphone while behind the steering wheel when the bus was in operation, which was a violation of the cellphone and distracted driving policies.
Red Arrow terminated the worker’s employment for violating its bus operating rules and distracted driving policy by using a cellphone while operating a bus. The union filed a grievance, alleging that termination was excessive.
The worker argued that he wasn’t trained on cellphone use while driving and he hadn’t been given a proper opportunity to rest before departing the Edmonton depot because a bed wasn’t available for him. He also argued that he used the cellphone for a work-related activity and he wasn’t actually driving when he used it. In addition, the worker pointed out that Red Arrow required him to use a remote control to change the on-board movie system, which was as much of a distraction as using a cellphone.
The arbitrator noted that Red Arrow provided all drivers with comprehensive training regarding safety policies, including strict rules on the use of cellphones. The worker had received this training and signed off on the policy and, despite the worker’s claims of insufficient training, the arbitrator accepted Red Arrow’s submissions that the training had been properly provided.
Clear policies, training on cellphone use
As the arbitrator pointed out, Red Arrow had several things in place that worked in its favour, says Snowdon.
“They had clear policies in place, training on the policies, and an employee sign-off on the training, so it becomes very difficult for the worker to claim that he didn't know about or didn't understand the policy,” he says. “[Red Arrow] did a bunch of things right on the front end, and they had a system in place to monitor employee conduct and see what the worker was doing.”
However, it was unclear in the decision whether the company’s investigation gave the worker a chance to provide some context to the situation – which could have been a potential misstep, according to Snowdon.
“The worker was stopped at a red light, but it's unclear whether he was given an opportunity to provide that context,” he says. “Did Red Arrow consider the safety implications of the policy infraction between a moving vehicle and a vehicle that's not moving? Did they give him an opportunity to explain that or to say what he was doing before things progressed to a hearing?”
The arbitrator rejected the worker’s argument that he used the cellphone for work purposes, emphasizing that there were other options available, such as updating his status before leaving the depot or pulling over safely to make the changes. In addition, the availability of a bed to rest before his trip didn’t affect the worker’s ability to rest or follow policies, the arbitrator said.
Just cause for termination
The arbitrator pointed out that Red Arrow had previously dismissed employees for similar violations, reinforcing its commitment to safety standards. Red Arrow argued that the worker’s actions compromised its safety reputation, a position the arbitrator agreed with, finding that the worker’s conduct put “the safety of himself, his passengers, and members of the public outside the bus at risk.”
In addition, the arbitrator noted that Red Arrow, as an employer, had statutory and industrial relations obligations to maintain safety in the workplace. The worker showed that he was aware of the risks of using a cellphone while operating the bus – also a violation of provincial law - when he pulled over to use the cellphone a second time, said the arbitrator, adding that the remote control for the movie system was part of the vehicle’s system operation and there was no evidence that using it constituted distracted driving.
The arbitrator cited prior cases to underline the severity of distracted driving violations, especially for bus drivers who are entrusted with public safety, and pointed out that distracted driving is among the most serious employment offences for a bus operator given their elevated position of trust and responsibility for passenger safety.
Termination over progressive discipline
While the union argued that the incident was isolated and progressive discipline should have been applied, the arbitrator concluded that termination was appropriate given the seriousness of the misconduct. The arbitrator noted that the worker showed no awareness of the potential dangers associated with his intentional actions, raising concerns about the likelihood of future violations if reinstated.
The arbitrator upheld Red Arrow's decision to terminate the worker.
“The overall picture of this decision is that Red Arrow and the arbitrator agreed that distracted driving is a fundamentally serious issue, even in a stopped vehicle, and that safety requirement set out in the policy was so important that the surrounding context didn’t mitigate the seriousness of distracted driving,” says Snowdon. “It’s questionable to me whether the seriousness was balanced against the fact that it wasn't a moving vehicle at the time of the infraction, but arbitrator definitely focused on the infraction and concluded that [the worker] had no control or limited control of the bus despite it being stopped.”
“I think the seriousness of the offense was put in the context of the policies, the fact that the policies are so serious, and distracted driving is so dangerous,” he adds.
See Red Arrow Motor Coach Ltd. v. Red Arrow Drivers Association, 2024 CanLII 89635..
