Employee warned repeatedly about licensing requirement
A research development officer whose job was to drive around various clients of the United Way of Greater Victoria was fired after she failed to obtain her licence.
Tanya Soares was hired on a six-month probationary basis on Jan. 23, 2018. At the time, she held an international driver’s licence that was valid in British Columbia until October. Soares was advised to gain a B.C. licence within 90 days.
In her letter of hire, the letter spelled out terms of employment: “A valid B.C. driver’s licence and access to a vehicle is a requirement of this position.”
In response to the letter, Soares emailed Hazel Braithwaite, director of community campaigns, later that day and said, “As I had mentioned earlier, I have an international driver’s licence which is valid in Canada for a year but I will immediately apply for my B.C. drivers’ licence as well. Also, my husband and I are in the process of getting a car and hopefully I should have one within one or two weeks.”
On March 21, Soares attempted the provincial driving test but she failed. When she arrived at the office, Soares was told her international licence was no longer valid.
Soares asked Braithwaite if she could have her husband drive her around while at work or could she also use a taxi until she was able to pass the driving test. Soares was told yes, but she was told that this arrangement wasn’t feasible for the long term.
On April 23, Soares was given a favourable evaluation but no mention was made about her failure to secure a licence.
Soares was reminded repeatedly about the need to obtain the licence, testified Braithwaite. Soares responded that she was nervous about passing the test and she needed driving lessons.
As the probationary period neared its end, Soares was advised by a Canadian Union of Public Employees (CUPE), Local 50 shop steward that the licence requirement was not recognized by the union.
In a July 9 email, local president John Burrows warned the employer that “if the employer takes the position that Soares fails in her probationary period due to the lack of a valid B.C. driver’s licence, we will have no choice but to file a grievance.”
Soares remained unlicenced and on July 18, her employment was terminated.
CUPE filed a grievance on July 24 that alleged unjust termination. It also said that the requirement for a driver’s licence was never approved by the union.
The employer disagreed and produced a 2015 job-description letter to the union that called for a licence, as well as a 2017 job description that was also sent to CUPE.
The union also argued that the United Way didn’t properly warn Soares via the discipline process about the licence requirement.
Arbitrator Ken Saunders disagreed and dismissed the grievance.
“(Soares) testified she did not ‘absolutely know’ she needed her licence until about two-and-a-half weeks before her dismissal. I accept (Soares) was confused about whether the union or the employer was ultimately behind the licence requirement,” said Saunders.
“However, the contention that (Soares) was not adequately notified does not fit with the whole of her testimony and the circumstances at hand. In cross-examination, (Soares) testified she knew her job required a valid licence before she was hired. She knew that continuing to have her husband drive her to appointments, using taxis or using public transit was not a realistic long-term solution. Further, (Soares) continued her efforts to obtain a licence, including lessons. I find in the circumstances, that (Soares) adequately understood what was expected. She was simply unable to deliver,” said Saunders.
Reference: United Way of Greater Victoria and Canadian Union of Public Employees, Local 50. Ken Saunders — arbitrator. Gregory Heywood for the employer. Susan Jansen for the employee. Feb. 13, 2019. 2019 CarswellBC 661
Tanya Soares was hired on a six-month probationary basis on Jan. 23, 2018. At the time, she held an international driver’s licence that was valid in British Columbia until October. Soares was advised to gain a B.C. licence within 90 days.
In her letter of hire, the letter spelled out terms of employment: “A valid B.C. driver’s licence and access to a vehicle is a requirement of this position.”
In response to the letter, Soares emailed Hazel Braithwaite, director of community campaigns, later that day and said, “As I had mentioned earlier, I have an international driver’s licence which is valid in Canada for a year but I will immediately apply for my B.C. drivers’ licence as well. Also, my husband and I are in the process of getting a car and hopefully I should have one within one or two weeks.”
On March 21, Soares attempted the provincial driving test but she failed. When she arrived at the office, Soares was told her international licence was no longer valid.
Soares asked Braithwaite if she could have her husband drive her around while at work or could she also use a taxi until she was able to pass the driving test. Soares was told yes, but she was told that this arrangement wasn’t feasible for the long term.
On April 23, Soares was given a favourable evaluation but no mention was made about her failure to secure a licence.
Soares was reminded repeatedly about the need to obtain the licence, testified Braithwaite. Soares responded that she was nervous about passing the test and she needed driving lessons.
As the probationary period neared its end, Soares was advised by a Canadian Union of Public Employees (CUPE), Local 50 shop steward that the licence requirement was not recognized by the union.
In a July 9 email, local president John Burrows warned the employer that “if the employer takes the position that Soares fails in her probationary period due to the lack of a valid B.C. driver’s licence, we will have no choice but to file a grievance.”
Soares remained unlicenced and on July 18, her employment was terminated.
CUPE filed a grievance on July 24 that alleged unjust termination. It also said that the requirement for a driver’s licence was never approved by the union.
The employer disagreed and produced a 2015 job-description letter to the union that called for a licence, as well as a 2017 job description that was also sent to CUPE.
The union also argued that the United Way didn’t properly warn Soares via the discipline process about the licence requirement.
Arbitrator Ken Saunders disagreed and dismissed the grievance.
“(Soares) testified she did not ‘absolutely know’ she needed her licence until about two-and-a-half weeks before her dismissal. I accept (Soares) was confused about whether the union or the employer was ultimately behind the licence requirement,” said Saunders.
“However, the contention that (Soares) was not adequately notified does not fit with the whole of her testimony and the circumstances at hand. In cross-examination, (Soares) testified she knew her job required a valid licence before she was hired. She knew that continuing to have her husband drive her to appointments, using taxis or using public transit was not a realistic long-term solution. Further, (Soares) continued her efforts to obtain a licence, including lessons. I find in the circumstances, that (Soares) adequately understood what was expected. She was simply unable to deliver,” said Saunders.
Reference: United Way of Greater Victoria and Canadian Union of Public Employees, Local 50. Ken Saunders — arbitrator. Gregory Heywood for the employer. Susan Jansen for the employee. Feb. 13, 2019. 2019 CarswellBC 661
