A Nova Scotia Supreme Court justice has sided with an arbitrator, ruling in a decision released Friday that Halifax Transit was wrong to fire a bus driver who was repeatedly disciplined.
Halifax Transit fired Jill Webb in September 2018. Amalgamated Transit Union, Local 508, filed a grievance on Webb’s behalf and an arbitrator, J.A. MacLellan, set aside Webb’s termination. After about 20 months off work, she was reinstated without back pay.
The municipality sought judicial review of the arbitrator’s decision, arguing MacLellan made several legal errors. Nova Scotia Supreme Court Justice Jamie Campbell heard the case on Dec. 3, and the court released his written decision on Friday, siding with the arbitrator.
“From the ‘wide-angled’ perspective, the arbitrator’s decision was reasonable. The reasoning path was internally coherent, rational, and transparent. The conclusion that he reached was reasonably supportable on the facts and the law,” Campbell wrote.
“Even if one were to feel compelled to venture into the weeds on this one, finding fault with the decision would require a willful suspension of ability to reasonably infer the minutely detailed analytical steps from the coherent, rational and transparent reasoning path set out by the arbitrator.”
Webb was fired after four incidents in the summer of 2018:
- On June 28, Webb got into an argument with a cyclist after she pulled out into traffic without signalling
- On July 8, Webb got into an argument with a passenger who didn’t pay the full fare and the passenger threatened her
- On July 9, Webb didn’t stop at a railway crossing, but rather rolled through it slowly
- On July 11, Webb was seen eating while driving a bus
MacLellan ruled that two of those incidents, on July 8 and 9, didn’t warrant discipline.
With regard to the incident with a passenger on July 8, MacLellan wrote: “I find it ironic that the grievor [Webb] was the one who was threatened, filed a complaint and ends up being disciplined.”
On the July 9 incident, Webb told her employer she didn’t want to stop because there was a Canada Post van close behind her and she was worried there’d be a collision. The arbitrator found she “was accurately describing what she was observing at the time and that the employer did not have justification to discipline her for that incident.”
On the June 28 incident with the cyclist, the arbitrator ruled Webb didn’t properly signal to the cyclist that she was pulling out, and during their argument, she was “speaking in a loud and defensive manner.”
And on the final incident, on July 11 — in which Webb “had a red plastic container in her left hand that she was balancing on the steering wheel while using a fork with her right hand” — MacLellan ruled the incident was “deserving of discipline.”
“Having found that discipline was justified regarding two of the four incidents, the arbitrator went on to consider whether the termination of Ms. Webb’s employment was an extreme remedy and if so, what alternate penalty would be fair and reasonable,” Campbell wrote.
Campbell notes Webb had been disciplined before. In 2017, she was suspended twice for offensive comments. In 2016, she was suspended for “unacceptable behaviour, poor judgement and disrespect with passengers.” There were also suspensions in 2015 and 2014.
The arbitrator, Campbell wrote, “noted that the grievor did not have a good discipline record and that was an aggravating factor.” But aside from one ticket that was withdrawn, she had no previous driving infractions and she’d been with Halifax Transit for seven years.
“Another factor was whether the offence was committed on the spur of the moment or was premeditated,” Campbell wrote. “The first incident involving the cyclist was not premediated while the second offence, involving eating while driving was. That was an aggravating factor.”
Campbell wrote that the arbitrator also noted Webb was a finalist for the Coast’s Best of Halifax awards. In fact, she won gold in 2017. The write-up in the Coast:
“Are you serious? I got gold? Oh, you just made my whole life.” Jill Webb is excited. And why not? After six and a half years behind the wheel of nearly every transit route in the city, she’s been voted Halifax’s Best Bus Driver. Not only does Webb keep the wheels turning, but she makes sure to treat her passengers with respect and kindness. “I took the bus my whole life, and I know what it’s like taking the bus, so I try to treat people as good as I can,” she says.
The arbitrator decided Webb’s punishment was too harsh. Maybe if he’d agreed that the July 9 rail crossing incident had warranted discipline, he’d have found otherwise, but “In the circumstances however, the termination was held to be excessive.”
Citing another judge’s case, Campbell wrote that his role in reviewing the arbitrator’s decision was to review MacLellan’s decision from a “wide-angled, not microscopic” perspective.
“The concerns put forward by HRM in this case tend toward a more fine-grained analysis of the arbitrator’s reasoning. To the extent HRM has taken a wide-angled view it can be described as being a firm view that the arbitrator got it really wrong,” Campbell wrote.
Campbell found, however, that the “arbitrator’s reasoning path was clear. It was rational, coherent, and transparent.”
He also wrote that the close call will serve as sufficient warning for Webb.
“Given the two incidents that were proven to justify discipline, what was in effect a 20-month unpaid suspension was imposed,” Campbell wrote. “That serious penalty, along with the arbitrator’s comment that the railway crossing incident would have justified termination, would put the grievor on notice that she had no room for further error.”
Campbell awarded $1,000 in costs to the union.
This lady was effectively suspended without pay for almost 2 years. I still think the punishment was excessive whether you consider the offensives individually or cumulatively.
Thank you for this Zane. As a union activist, I appreciate greatly articles like this that really get into the details of why unions matter. The reactionary position (the one that favours employers’ ability to fire workers) I think I can safely say, would be the one most ordinary people would agree with. The record of disciplinary incidents would lead most people to think this worker deserved to be fired. But let’s think about that for a moment. In Canada, I think it is quite fair to say, without a job, it is not really possible to live with anything approaching dignity. Even with a job it is sometimes impossible in a country where the minimum wage doesn’t come anywhere near a living wage in any single province or territory. So given that a job is a basic necessity for survival, it should be regarded as something very serious for someone to lose their job.
In Nova Scotia, and Canada generally, workers can be fired without cause as long as employers aren’t violating the worker’s human rights when they do so (you can’t be fired for being gay, or black or pregnant etc). But an employer can fire a worker for “no reason”, and this is perfectly legal. While it may seem unbelievable, it’s true, and it is the reason that just about every union contract you will ever find in this country, has language about “just cause” when it comes to terminating a member of that union. Unions recognise that employment insurance is at best a partial solution to loss of unemployment (which you’re not even eligible for if you’re fired) and so they take very seriously their duty to protect members from being fired.
Now, I’m sure there are many people who think this is exactly the major problem with unions, that bad workers can’t be fired. But as someone who has been a union shop steward, I can say that I have personally been involved in two terminations of members I represented. Grievances were filed in both cases and the reason for this was to guarantee the members’ rights to fair representation by their union and for fair settlement terms. So, no, it is not impossible to fire unionised employees. That is an absolute lie and a myth which the business sector loves the public to believe.
Unions protect workers. Just cause language is just one of the many ways they ensure that workers (unionised ones at least) have protections beyond the pathetic labour codes that exist in the provinces and territories, to ensure their members’ livelihood and dignity.