Truck driver awarded seven months' notice

Driver fired after customs officers found smuggled alcohol in his truck
|employmentlawtoday.com

A truck driver was awarded seven months’ pay in lieu of notice after being wrongfully dismissed by his employer.

Ben Meyer, a driver for K-DAC Expedite in Petersburg, Ont., was returning to Canada on Sept. 21, 2005, after delivering a load to Miami. He stopped at a duty-free store in Detroit and purchased a bottle of Hiram Walker whiskey before crossing into Windsor, Ont.

As part of his job, Meyer had a FAST card, which is required under the Fast and Secure Trade Program. The FAST program essentially makes crossing the border quick and easy and was implemented in the wake of the Sept. 11 terrorist attacks.

After purchasing the alcohol, Meyer proceeded to the border in the FAST lane even though he should have been in a regular lane since he had a purchase to declare. Nevertheless, he declared the duty-free purchase to Canada Customs at the Ambassador Bridge. Customs officials conducted a secondary search of his vehicle and found another bottle of Hiram Walker whiskey and four 16-ounce containers of beer.

Meyer said the alcohol was not his and he didn’t know it was in the truck. He was allowed to keep his duty-free purchase, but the other alcohol was confiscated. More importantly, he also had to surrender his FAST card. As soon as he left customs, he phoned Bonnie Long, the safety and compliance officer at K-DAC, and told her what happened.

Long came to the conclusion that Meyer would not be allowed future entry to the U.S. without a FAST card. (She later discovered this was not the case, and that Meyer could transport non-FAST loads.) She was also concerned that Meyer’s actions might jeopardize K-DAC’s FAST membership, something that she also later discovered was not an issue.

Suspension letter

On Sept. 26, Long suspended Meyer without pay effective Sept. 22. The letter read in part:

RE: Disregard Company Policy

Ben, on September 21, 2005, you were stopped by Customs at the Ambassador Bridge in Windsor, and an amount of Whiskey and Beer were seized from your possession by an Officer. You claim to have disclosed an amount of liquour purchased by yourself at Duty free, to the Officer, but an additional amount was found in your truck. As such, your F.A.S.T. card was confiscated and I have been told, most likely will not be returned in the future. As a result of this incident K-DAC’s F.A.S.T. membership has been put in jeopardy.

In addition to these events, you admitted to a blatant disregard of company policy regarding the possession of alcohol while in operation of any company vehicle. As a result of this negligence, you will now be disallowed entry into the U.S.A. This, alone, puts your position within KDAC at a major disadvantage until such time as your F.A.S.T. card is returned.

In light of these recent events, we feel that we have no choice but to suspend you for an undetermined period of time, without pay, commencing September 22, 2005, inclusive. If, in the interim, we find that you made false statements in regard to this incident, your employment will be terminated immediately.

Company policy

The company’s policy with respect to alcohol was in the driver’s manual. The rules stated that:

•At no time shall any amount of alcohol be consumed eight hours prior to operating a vehicle at K-DAC Expedite. Any employer involved in any alcohol-related incident will be subject to the guidelines of our Drug and Alcohol policy after which dismissal without notice may occur. Failure to notify the company of any alcohol-related incident can and may result in automatic dismissal without notice.

•At no time shall any amount of alcohol and or controlled substance be carried in any vehicle operated under the authority of K-DAC Expedite. At no time shall any employee use any controlled substance. Should an employee fail any controlled substance test, they will be subject to the disciplinary action stated in the Drug and Alcohol policy, which can and may lead to immediate dismissal.

Meyer’s appeal

Meyer applied to the Canada Border Services Agency on Nov. 8 to get his FAST card back. On Nov. 28, he was told his application was unsuccessful and he would not be eligible to reapply until Sept. 21, 2008.

The employer’s position

K-DAC took the position that the requirement to be FAST approved was incorporated into Meyer’s contract of employment. The company had made a decision to become FAST approved and communicated the importance of this decision to its drivers.

The drivers were told they had to apply to be FAST approved and they did so without objection. Although Meyer only handled a few FAST loads, the loss of his card posed other problems, the employer said.

For one thing, he would no longer be eligible to deliver what are called line-release loads to the U.S. These loads allow a shipper to pre- or post-clear customs prior to departure or following delivery. Although such shipments are not as expedited as FAST loads, they are speedier than other shipments. Also, the company said that a driver without a FAST card would raise a red flag and attract more scrutiny at border crossings. This would lead to delays and added costs.

K-DAC argued that contracts of employment can be amended from time to time and where the employees are informed of the changes and accept them or continue to work without objection, the variation does not constitute a constructive dismissal. In this case, there was no unilateral and fundamental change to Meyer’s contract.

Rather, the employment contract evolved as a result of the FAST program. Meyer accepted the change by becoming a FAST approved driver and he did so without complaint.

K-DAC said it had just cause to dismiss Meyer. The Sept. 21 incident resulted in the loss of his FAST card. He put himself in jeopardy by violating U.S. Federal Motor Carrier Safety Regulations, company rules and Canada Customs laws. The fact his FAST card was revoked for three years shows the seriousness of the incident, the employer said.

And the employer argued that, despite his claim to the contrary, that the evidence proved, on a balance of probabilities, that the alcohol confiscated by customs belonged to Meyer. The previous driver had conducted a thorough search of the truck and had cleaned out his personal property on Sept. 8. He said he found no alcohol in the truck.

The employer said that if the alcohol belonged to someone else, Meyer would have found it while conducting the required vehicle inspections prior to and during the Miami trip.

The worker’s position

Meyer took the position that he had been constructively dismissed on Sept. 22 when the employer suspended him without pay.

There was no evidence the employer had the explicit right to impose an indefinite suspension and no evidence that suspensions were an implied term of the employment contract based on custom and usage in the industry with incidents involving alcohol. If the employer did have the right to suspend, then a three to five day suspension would have been reasonable — not an indefinite one.

Meyer also argued that the employer never asserted just cause when it indefinitely suspended him. It was his refusal to accept the suspension that effectively brought the employment contract to an end.

And furthermore, the employer simply didn’t have just cause.

The arbitrator’s decision

The arbitrator sided with Meyer. In doing so, the arbitrator said it was unnecessary to dwell on whether the employer had the right to indefinitely suspend Meyer or whether the employer advanced a claim of just cause at the time it suspended him.

The suspension letter dealt with three interrelated matters: the confiscation of the FAST card; K-DAC’s concern that its FAST membership was in jeopardy; and Meyer’s disregard of company policy.

“The triggering event was the breach of company policy,” the arbitrator said. “Suffice it to say, assuming the employer has the right to assert it had just cause for dismissal, my assessment of the evidence leads me to conclude it did not have just cause for dismissal.”

The arbitrator said employment contracts can be modified. But though K-DAC did communicate the importance of the FAST program to its drivers and had them apply to be FAST approved, the evidence did not establish that possession of a FAST card was a fundamental term of a revised contract of employment or that termination would result if a driver did not have a FAST card.

“The employer did not communicate to Meyer that it was amending his contract of employment in this way, nor can it be said that Meyer accepted such an amendment to his contract of employment by virtue of continued employment,” the arbitrator said. “Similarly, an amendment to his contract of employment cannot be implied. Whereas the loss of his FAST card would render (him) ineligible to work in the U.S. under the FAST program, the evidence is Meyer infrequently handled FAST loads. There is no dispute that possession of a FAST card is advantageous, but there is nothing to indicate that a driver will be dismissed if he does not have a FAST card.”

The arbitrator said the employer’s major fear in its indefinite suspension letter of Sept. 26 appeared to be that Meyer’s actions would jeopardize its status as a FAST approved carrier.

“As it turns out, this never happened,” the arbitrator said. “(The employer) was also under the mistaken belief that Meyer would not be allowed entry to the U.S. In all the circumstances, I am not persuaded the revocation of Meyer’s FAST card constituted just cause for dismissal.”

Nor did the alcohol-related incident amount to just cause. The arbitrator said the employer was unable to prove, on a balance of probabilities, that the second bottle of whiskey and the beer belong to Meyer.

“Yes, it was found in the vehicle he was operating, but it is far from clear how it got there,” the arbitrator said.

The evidence around who might have operated the truck after the previous driver cleared it out was “incomplete.” The employer argued that it seemed more than coincidental that the whiskey was the same brand as the one Meyer bought at the duty-free store.

“This may be suggestive, but it is far from determinative,” the arbitrator said. “I found Meyer’s testimony candid and forthright. His evidence is he was unaware of the whiskey and beer in the vehicle and when he was entering Canada, he purchased a bottle of whiskey at duty free and declared it.”

And though the fact Meyer bought alcohol meant he was in breach of company rules relating to alcohol, it didn’t justify dismissal. The employer argued it had a zero-tolerance policy towards alcohol, but the arbitrator said that claim was unfounded.

“A plain reading of the rules does not convey such a meaning. On their face, the rules indicate that only in specified circumstances is there the possibility than an infraction ‘can and may’ result in immediate dismissal,” the arbitrator said. “One can readily envision a continuum of alcohol-related incidents ranging from relatively minor (alcohol in the vehicle) to very serious (consuming alcohol while driving).”

The Sept. 21 incident was a “relatively minor breach” of the rules that would most likely warrant a written reprimand or a short suspension for the first offence, the arbitrator said.

Remedy

The arbitrator decided not to award Meyer his job back. Instead, he awarded seven months’ pay plus costs.

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