A recent Judicial Review decision highlights the extremely high bar that exists for employers seeking to prove just cause for termination. In Toronto Transit Commission v. Amalgamated Transit Union, 2022, the grievor worked for the TTC as a bus operator for six years and was terminated for cause after an accident that caused the death of a 14-year-old girl, a passenger on the grievor’s bus.
The girl exited the bus and was struck and killed when the grievor made a right turn on a red light just as the pedestrian stepped off the sidewalk to cross on a green light. The grievor was not aware he had hit the pedestrian and continued on his route.
The grievor was convicted of careless driving. He was sentenced to a fine and 12 months of probation. In an arbitration in relation to the grievance of the termination, an arbitrator substituted a penalty of reinstatement to a non-driving position without backpay. The TTC brought an application for judicial review.
The application for judicial review was dismissed. The TTC had cause for discipline, given the conviction for careless driving, the grave consequences of the grievor’s inattention to passenger safety, and the TTC’s concern and responsibility for the safety of the public.
The arbitrator noted that he was bound by the careless driving conviction, and that the issue before him was assessing the employment consequences of that carelessness. The arbitrator took the grievor’s disciplinary record into account, which included a warning letter for a preventable collision, and a “last chance agreement” signed by the grievor after he was dismissed and reinstated previously for using a Bluetooth device while driving a TTC vehicle.
Notwithstanding this history, the arbitrator, concluded that the grievor’s lapse with respect to safe driving had not irreparably damaged the employment relationship and therefore reinstated the grievor to a non-driving position without backwages.
Why This Matters:
This case could be precedent setting for the developmental services sector and have significant impact on how and when employers will have to reinstate employees.
Sadly, the DS sector is not immune to situations involving harm to people supported caused by deliberate or negligent worker conduct. Nor is it unusual for an employee to be reinstated to employment, despite misconduct causing serious harm to people supported. This case reaffirms that the bar is set very high for proving just cause and the value in pursuing remedies short of arbitration for resolving dismissals cases where an employer wishes to avoid the risk of reinstatement.
PooranLaw will continue to monitor the ongoing legal developments related to case and in the impact on the DS sector. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.