I was on the road this morning, reminding myself why I dislike driving in winter, and on 102.1 (the "Edge"), I heard the radio host Josie Dye discussing a story she had read about in the news, involving a TTC driver being investigated for eating a chocolate bar while driving. You can read about the story in the Toronto Star.
Josie questioned the severity of such an allegation. The prospect of this employee being suspended or even fired for such an incident seemed absurd to her. It's a chocolate bar. She acknowledged the TTC's statement that drivers are prohibited from eating or drinking while operating a bus, but argued that eating a chocolate bar is not necessarily the same as eating a full three-course meal behind the wheel. (Well, I'm paraphrasing - the point was about the same.) When one of her callers suggested, albeit not in so many words, that we need a bright line rule about eating, rather than fuzzy contextual analyses, Josie argued the contrary, that context counts for a lot: We need to use common sense.
Now, I want to step back for a second and say that, on the TTC statements that I'm reading, I see absolutely no evidence for the proposition that this employee has been suspended pending investigation, or that the employee is likely to face suspension or discharge for this misconduct. The only real facts that appear in the news story are that the employee was accused of eating a chocolate bar; eating breaches TTC policy; and the TTC is investigating. This all seems quite reasonable to me. A "no eating or drinking" policy seems to make sense in my mind, and investigating when there's an allegation of a breached policy also makes sense. I wouldn't advocate a serious penalty for a first offence under the circumstances described, but this all seems legit.
That being said, Josie is absolutely right about the contextual approach. If a driver was fired for eating a chocolate bar and thereby breaching policy, and it were a first offence (again, we don't know this), then there's little doubt that an arbitrator would reinstate the employee. It is a relatively minor offence, and even though it is safety-related the actual implications of the conduct are fairly insignificant. (Heck, there was one case where a police dispatcher was reinstated after being fired for stealing chocolate bars from the workplace concession machine.) On the other hand, if the conduct complained of posed a serious and imminent risk to the public, or was otherwise unlawful (i.e. talking on a cell phone), then it would be more serious and potentially attract more serious penalties.
Josie went on to note that there may be perfectly reasonable excuses for eating a chocolate bar. What if the driver was diabetic and needed to keep his blood sugar up? Or maybe not diabetic, but tired and needing a pick-me-up for safety-related concerns?
I have to disagree with Josie about these, to some extent. A case involving a diabetic driver would be extremely complicated, partly because she's right - failure by a bus driver to properly manage the condition would be extremely dangerous to the general public. There's a presumptive obligation to accommodate, that an employer may have to permit a diabetic employee to snack as necessary...however, with the lack of supervision and peer interaction on the job, the significantly safety-sensitive aspects of driving a bus, and potential hazards caused by the necessity of snacking while driving, the TTC would likely have an argument against needing to accommodate.
As for a tired driver needing a pick-me-up...that's not an excuse, in my mind. An employer such as the TTC has a right to expect its drivers to show up for work bright-eyed and alert, not blurry-eyed and groggy with an extra large coffee in hand. It comes down to how you take care of yourself, for which we are all personally responsible. Even as a lawyer, I consider a good night's sleep to be important, to be sharp and doing my best work for my clients the next morning. Tiredness causes mistakes. On the road, mistakes can be life-or-death. So having a chocolate bar because "I stayed up too late last night, so I needed to address my tiredness" is actually more serious in my mind than having one just because "I felt like indulging my sweet tooth." Now, if I were a TTC driver kept up all night by a colicky newborn or some other factor outside of my control, and got up in the morning feeling unable to safely operate a bus, then I would expect that the appropriate resolution would be to alert my supervisor to the situation before getting behind the wheel, rather than by waiting until I got caught with a coffee or chocolate bar and then trying to justify my conduct retroactively.
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.