Cell phones are one of the most common distractions for drivers. Statistics show that drivers engaged in text messaging are up to 23 times more likely to be involved in a crash or near crash when compared with non-distracted drivers. In response, distracted driving laws are now the norm across Canada with fines and demerit points the result of violations.
But what if an employee drives distractedly while on company time? Can an employer impose its own discipline? A recent labour arbitration suggests discipline, and in some cases termination, is warranted.
In BFI Canada Inc. v. Teamsters Union, the Grievor, a truck driver with the BFI, was dismissed for violating the company's distracted driving policy after an on-board camera showed him holding and using his cell phone while driving at a truck stop. The camera captured the Grievor looking down for almost eight seconds and at times holding his phone in both hands. The union grieved the termination.
At arbitration, BFI argued that professional drivers of heavy vehicles should be held to a higher standard of care because of the inherent dangers of such equipment. In that light, BFI took the position that the cell phone infraction was dangerous and egregious. BFI argued that this serious breach of company policy constituted a culminating incident that justified discharge according to the principles of progressive discipline.
It is well-accepted in labour arbitration that an employee may be terminated for an incident that standing alone would attract only a small amount of discipline if that incident is the "final straw" in a lengthy disciplinary history.
Prior to his dismissal, the Grievor had been disciplined four times in the previous calendar year for a variety of transgressions. In imposing that discipline, BFI followed a progressive discipline approach, increasing the amount of discipline for each subsequent disciplinable event, as follows:
In February 2013, a verbal warning for damaging a trailer while on loading duties;
In March 2013, a written warning for damage caused while backing up his loader;
In April 2013, a one day suspension for failing to carry out a pre-trip inspection of his truck; and
In May 2013, a three day suspension for insubordination.
The union conceded that the employer had established just cause for some discipline over the cell phone incident. It argued however that discharge was too harsh a penalty based on, among other things, the fact that the Grievor was not texting or emailing but had simply swiped his phone's screen and hit redial, that the Grievor was not on a public road, that the truck stop was not busy, that his vehicle was moving very slowly and that the Grievor's foot was hovering over the break the whole time.
The arbitrator disagreed, stating:
46 I am satisfied that the Grievor's behaviour was unsafe. Even at a slow speed in a quiet gas station, driving forward while not looking out the front window, and indeed looking down for part of the time holding a phone in both hands, is inherently dangerous. It takes but a moment for a person, animal, or vehicle to suddenly come in harm's way. The fact that nothing happened in this case is immaterial. The Grievor should not have been driving at any speed while paying attention to his phone rather than the road, a rule of which he was fully aware. This behaviour provides just cause for discipline.
The arbitrator held that while the incident that led to the dismissal may have been less serious than the employer suggested, it still constituted a clear case of unsafe driving, a far from trivial transgression for a professional driver who was rightly held to a high standard. The arbitrator held that on its own, the incident would have attracted no more than a verbal or written warning, but concluded that based on the culminating incident doctrine, BFI had just cause to terminate the Grievor's employment.
In addition to the Grievor's misconduct, the arbitrator considered the following factors in coming to its decision to uphold the termination:
BFI had in place a reasonable cell phone use and distracted driving policy as part of its safety program. The policy was brought to the Grievor's attention and he was trained on it;
BFI's safety training identifies cell phone use while driving as a safety hazard that substantially increases the risk of injury;
The policy warns of discipline for violations, up to and including termination and it was consistently enforced between employees;
The Grievor did not show any remorse for his actions; and
While the Grievor's length of service and relatively clean record up to 2013 were mitigating factors, they were insufficient to overcome the degree of repeat misconduct and the absence of evidence that the Grievor was likely to improve his conduct.
Take Away for Employers
In order to help ensure discipline and/or discharge for distracted driving is upheld, employers should develop a clearly worded distracted driving policy that incorporates guidelines for the use of hand-held devices. All employees should be required to sign off that they have read and understood the policy. Where possible, employers are also encouraged to train employees on the policy. Finally, the policy should be enforced consistently, using progressive discipline where appropriate.
The lawyers at CCPartners have experience with all aspects of discipline and discharge including progressive discipline and culminating incidents. Click here for a list of lawyers from the CCPartners team that can assist you with all your labour relations issues.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.