It’s hard to see fairness in ruling

OC Transpo driver’s reinstatement comes at incredible price

Paul Gagnier, the angry bus driver, is getting a job back with OC Transpo.

But his old life? Not so much.

And his case says much about the shortcomings of our labour arbitration system, which unintentionally punishes, even as it attempts to remedy.

In a ruling in mid-July, arbitrator Kevin Burkett decided Gagnier should be given a lower-paying inside job at OC until he reaches the pensionable age of 60, in about two years.

The ruling did not say he should be slapped with a $93,000 fine, but that is, in effect, what happened.

Gagnier waited 20 months — during which he was under or not employed — to learn his fate. Back pay? Zero. Compensation? None.

And, bizarrely, the ruling says he must “unconditionally” and “in writing” agree to retire on the day he turns 60. Among other things — even though he agreed — is that even legal?

To back up, Gagnier was at the wheel of a near-empty No. 96 late one night in November 2011. He was being pestered and provoked by an unruly passenger, a student from Algonquin College, strangely wandering up the aisle.

The driver finally lost his composure, dropping a pile of f-bombs, even threatening to boot the student’s posterior as he got off the bus.

By coincidence (we are to believe), another passenger was recording the entire antics on a cellphone, which shortly thereafter found itself on YouTube, whereupon a proper poop storm was launched.

We find out later the noisy student was a maker of confrontational films, sometimes startling people on the street. Some smelled a setup.

Funny, but days after Gagnier was fired, I spoke to a leader at the Amalgamated Transit Union. He predicted the driver would get his job back, adding “but it’ll take two years.” He was only off by four months. Two years? Outrageous. How is someone supposed to plan anything, insecure in the knowledge their old job may or may not be waiting in 24 months? Not well, it turns out. “On a personal level, it’s been a tough time for Paul,” said ATU president Craig Watson. “He’s a different person now.”

It doesn’t just affect the individual, but the family, too, Watson added.

“It sort of puts their lives and jobs in limbo, especially in a termination case where it can go on and on and on.”

Indeed, did Gagnier have enough on his plate already? (Not to mention the media attention, which he dreaded.)

In the two years before his firing, his mother and ex-wife died, leaving him as a single parent to three children, and his father underwent heart surgery. To deal with all the competing demands on his time, he worked mostly night shifts.

Only days before the screaming outburst, a teenager spat in Gagnier’s face as he ran off the No. 12 bus along Montreal Road, a serious-enough occurrence that Gagnier was sent home early and took some time off.

But, getting back to the premise that arbitration is a broken process, a city councillor admitted to me privately at the time that his best guess was Gagnier would win his job back at a grievance hearing. He was mostly right.

So, think how backward this is. Both the union and employer, apparently, recognized the firing would be overturned on sober reflection, but it went ahead anyway.

And who pays the price? Paul Gagnier.

The state of labour arbitration is hardly a sexy topic in Ontario, but there is concern percolating that it has strayed far beyond its original brevity and usefulness.

In 2011, Ontario Chief Justice Warren Winkler gave a speech in which he warned the legal community that the labour-dispute resolution process was seriously out of whack.

It was designed, he said, to be simple, quick, cheap and final. Instead, he saw it evolving into a process that is slow, expensive and loaded with lawyers.

He made those prescient remarks about six months before Gagnier was fired.

The former driver, with 24 years on the road, is now being re-tooled to start a job in the OC garage later this month. He will keep his seniority.

The important thing, says Watson, is that he now has a financial bridge to retirement, which is all he wanted in the first place.

A final point of reference about the punitive powers, by omission or otherwise, of the state.

In June, an Ottawa steel company was fined $75,000 for violating safety laws in an accident that killed a worker.

Paul Gagnier, meanwhile, is effectively fined $93,000 for swearing at a passenger who, arguably, asked for it.

And the wheels on the bus ...