Arbitrator can't substitute lesser penalty if agreement allows firing for carelessness, court says
A Hamilton transit company’s collective agreement permitted it to fire a bus driver for getting into an accident caused by carelessness, regardless of whether the driver’s carelessness was blatant or not, the Ontario Superior Court of Justice has ruled.
On Dec. 22, 2006, a bus driver for the Hamilton Street Railway Company (HSR) was following another bus as both left to begin their routes. Weather conditions were wintry and as a result the road was slippery. However, the driver didn’t allow enough distance between the buses and when the bus in front of her stopped, she was too close and her bus slid forward, colliding with the front bus. Both drivers suffered injuries and both buses were damaged.
The collective agreement between HSR and its union outlined several employee infractions that would “conclusively be deemed to be sufficient cause for dismissal of an employee.” These infractions included accidents that were the result of “carelessness, negligence or disregard of ordinary safety precautions” on the part of the employee. Because the driver didn’t follow the technique taught in training of counting four seconds between vehicles and didn’t take additional precautions because of slippery road conditions, HSR determined she caused the accident through carelessness, negligence and lack of using proper precautions. The driver had also been involved in two other accidents in the previous four months that HSR had deemed preventable, so it decided to terminate her.
An arbitrator overturned the termination, finding the intent of the collective agreement was to allow for dismissal of employees showing flagrant or serious negligence or carelessness. The driver was a relatively new employee who lacked experience and that may have contributed to the accident, the arbitrator said, but she didn’t have a “non-caring attitude” that warranted termination. The arbitrator also noted HSR usually followed a policy of progressive discipline.
The court disagreed with the arbitrator, finding the collective agreement gave HSR the discretion to fire an employee for carelessness or negligence. It was beyond the arbitrator’s jurisdiction, the court said, to give an interpretation different than the exact wording of the agreement. The court referred to the Ontario Labour Relations Act, 1995, which prevented arbitrators from substituting a lesser penalty if a collective agreement provides for a specific penalty.
“The collective agreement does not make dismissal mandatory when a finding is made that an accident occurred through carelessness or negligence or disregard of ordinary safety precautions,” the court said. “(But) the reference to dismissal is nevertheless a ‘specific penalty’ and thereby deprives the arbitrator of the power to substitute a lesser penalty.”
The court found the arbitrator violated the “clear wording” of the collective agreement by overruling the driver’s firing, which was allowed under the collective agreement. The driver’s termination for carelessness was reinstated. See Hamilton Street Railway Co. v. A.T.U., Local 107, 2008 CarswellOnt 6460 (Ont. S.C.J. (Div. Ct.)).
On Dec. 22, 2006, a bus driver for the Hamilton Street Railway Company (HSR) was following another bus as both left to begin their routes. Weather conditions were wintry and as a result the road was slippery. However, the driver didn’t allow enough distance between the buses and when the bus in front of her stopped, she was too close and her bus slid forward, colliding with the front bus. Both drivers suffered injuries and both buses were damaged.
The collective agreement between HSR and its union outlined several employee infractions that would “conclusively be deemed to be sufficient cause for dismissal of an employee.” These infractions included accidents that were the result of “carelessness, negligence or disregard of ordinary safety precautions” on the part of the employee. Because the driver didn’t follow the technique taught in training of counting four seconds between vehicles and didn’t take additional precautions because of slippery road conditions, HSR determined she caused the accident through carelessness, negligence and lack of using proper precautions. The driver had also been involved in two other accidents in the previous four months that HSR had deemed preventable, so it decided to terminate her.
An arbitrator overturned the termination, finding the intent of the collective agreement was to allow for dismissal of employees showing flagrant or serious negligence or carelessness. The driver was a relatively new employee who lacked experience and that may have contributed to the accident, the arbitrator said, but she didn’t have a “non-caring attitude” that warranted termination. The arbitrator also noted HSR usually followed a policy of progressive discipline.
The court disagreed with the arbitrator, finding the collective agreement gave HSR the discretion to fire an employee for carelessness or negligence. It was beyond the arbitrator’s jurisdiction, the court said, to give an interpretation different than the exact wording of the agreement. The court referred to the Ontario Labour Relations Act, 1995, which prevented arbitrators from substituting a lesser penalty if a collective agreement provides for a specific penalty.
“The collective agreement does not make dismissal mandatory when a finding is made that an accident occurred through carelessness or negligence or disregard of ordinary safety precautions,” the court said. “(But) the reference to dismissal is nevertheless a ‘specific penalty’ and thereby deprives the arbitrator of the power to substitute a lesser penalty.”
The court found the arbitrator violated the “clear wording” of the collective agreement by overruling the driver’s firing, which was allowed under the collective agreement. The driver’s termination for carelessness was reinstated. See Hamilton Street Railway Co. v. A.T.U., Local 107, 2008 CarswellOnt 6460 (Ont. S.C.J. (Div. Ct.)).
