Retail giant justified in terminating driver, says arbitrator
Retail giant The Brick was justified in firing a driver who continued to drive even after his licence was suspended, an arbitrator has ruled.
Jeffrey De’Ath started working for The Brick in Rexdale, Ont., in 1999 as a truck driver. He was convicted of speeding twice and his licence was suspended on May 26, 2004, for unpaid fines. Despite the suspension, De’Ath continued to drive for The Brick. The company was not aware of the tickets nor the fact that his licence was no longer valid.
The company’s safety rules clearly state that anyone operating a company vehicle must do so in accordance with the Highway Traffic Act. But De’Ath said he wasn’t aware of the suspension and had never received any written communication from the Ministry of Transportation about the suspension.
In February 2005, The Brick conducted a routine six-month check on its drivers. That’s when it discovered De’Ath’s licence had been suspended on May 26, 2004. It called him into a meeting on Feb. 8, 2004.
“It is noteworthy to note that when he showed his licence to the employer, the licence had expired two days previously,” the arbitrator said.
De’Ath knew his licence had expired, yet still drove to the meeting. But De’Ath said an expired licence was different than a suspended one, and said if he had been aware of the suspension he would have asked his employer to assign him other duties that did not involve driving rather than put his employment at risk. The Brick fired him for cause on Feb. 11, 2005.
It appears De’Ath was less than diligent about keeping the Ministry of Transportation up to speed on his address. Under Ontario law, an individual is required to notify the ministry of any address change within seven days of moving. And, under the law, the suspension is valid if it is sent to the last current address on file.
The arbitrator said it was not enough for De’Ath to suggest that because he didn’t know of the suspension that he wasn’t guilty of wilful neglect.
“In my view, clearly (De’Ath) is guilty of wilful neglect in both not paying his fine, and not notifying the ministry of his change of address as required by the Highway Traffic Act,” the arbitrator said. “While he may not have known of the suspension, it was his own actions that led to the suspension. As a truck driver for an employer, there is an obvious obligation to be in compliance with the Highway Traffic Act. His actions obviously put the employer at considerable risk had an accident occurred while the applicant was driving with a license under suspension.”
Therefore De’Ath was guilty of wilful neglect of duty and therefore was not entitled to either severance or termination pay. See De'Ath v. Brick Warehouse LP, 2006 CarswellOnt 2468, [2006] O.L.R.B. Rep. 12 (Ont. L.R.B.).
