Collective agreement gave transit company discretion to fire driver after accident

Arbitrator can't substitute lesser penalty if agreement allows firing for carelessness, court says
|Canadian Employment Law Today

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.