Man fired for eating at wheel loses case

Bus was going up to 53 km/h, arbitrator heard

An arbitrator has upheld the dismissal of a Calgary Transit driver seen eating rice from a bowl while on his morning route, saying the incident “constituted a reckless disregard for public safety.”

The 11- year employee was terminated by the City of Calgary in January 2019, about two weeks after a passenger called in a complaint about him eating while driving. Amalgamated Transit Union Local 583 argued that a suspension was more appropriate.

Arbitrator David Tettensor determined the outcome was reasonable given the evidence and previous discipline against the driver.

“The grievor drove the bus with passengers on a city street with traffic while using both hands to eat rice from a bowl, at times with both hands off the steering wheel, for a period in excess of three minutes,” Tettensor wrote. “During this time he had either no control or limited control of the bus.

“This was not momentary carelessness; it was a deliberate act which constituted a reckless disregard for public safety and was very serious misconduct.”

The driver was suspended without pay for five days in Dec. 2017 following a physical altercation with a passenger, but had an otherwise clean work history. His previous discipline factored in heavily.

A City of Calgary human resources adviser said a oneto three-day suspension for a violation of Transit's distracted driving policy might have been warranted if not for the prior discipline. Tettensor accepted the city's position, in part because only a year separated the two incidents.

“The evidence does not satisfy me that the employment relationship has rehabilitative potential,” he wrote.

“The City's concern that the griever did not take steps to correct his behaviour is reasonable.”

The review was triggered by a Dec. 28, 2018 complaint to the city's 311 line that a driver was seen eating food from a bowl while operating a bus that morning. A review of on-board video from the bus supported the complaint.

Tettensor's written decision said the video showed the driver eating from a bowl held in his left hand, with a utensil in his right, for more than three minutes while the bus travelled at speeds between 33 km/h and 53 km/h.

The driver, who is diabetic, said he was running three to five minutes late on the busy route when the incident occurred, cutting into any time he had for breaks and that he decided to eat when feeling the effects of low blood sugar.

His union agreed discipline was warranted but argued the driver's apology, years of service and immediate acknowledgment of his misconduct should be considered mitigating factors.