Friday, January 13, 2012

TTC Driver Eating a Chocolate Bar

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.


  1. I know this person and the fact. He has been on unpaid leave since the incident, and is told her could potentially be fired.

    He was actually eating a protein bar, which is necessary because drivers are forced to drive hours on end without breaks to eat, drink or go to the bathroom. He wasn't having a "treat" as the TTC is suggesting.

    The driver has an an otherwise clean safety record.

    As far as an investigation goes, I'm not sure what they are investigating since it was in fact a TTC employee who reported him - an undercover person who watches drivers to see how they are performing.

    So what do you think now with all the facts?

  2. When driving I am able to take my hand off the steering wheel to wipe my nose or cover my mouth when coughing, oh and I can bite into a snack.

  3. The fact is a "normal" shift in the TTC is around 9 hours long. Not too bad right? In that "regular" shift the operator will get one 15-20 break. That's it. No two 15s and a half hour for lunch. 20 minutes maximum in a 9 hour shift. Now that's if you're lucky to have more than five years of service on and can get a shift during the day. Most shifts that start in the afternoon and carry into the early morning or right overnight, they have no breaks. That's right, an eight hour shift and no break.
    When are these drivers who carry us from a to b each day supposed to re-fuel?
    Maybe TTCs dirty little secret, but until out transit system breaks through the dark ages, we might allow them a quick snack.

    1. We do not get breaks. Who told you we get breaks? I drive a 9 hour shift in the seat every night. NO BREAKS.

  4. If those are true, they're still not necessarily all the facts.

    I've talked before about not assuming that news stories have it right...Here are few notes for my readers about taking comments with a grain of salt:

    (1) There are good reasons that hearsay is presumptively not admissible in Court. When I have someone call me and say, "My friend has this issue", the hairs on the back of my neck stand up. I can't give advice under those circumstances, and I usually can't even schedule an appointment unless it's the person with the legal issue calling.


    Friends never have a full understanding of all the relevant facts. Sometimes the gaps in knowledge are larger than others. I've had people call me 'on behalf of' friends saying "My friend was fired for stealing, but she wouldn't do that!" ...okay, then why isn't she calling me? As her friend, you may certainly believe that she wouldn't steal, perhaps even without her having to deny it...but there's a bit of self-selection in wrongful dismissal litigation. Just cause is a very high threshold, only existing in the clearest case...and I *very seldom* see employees in situations where just cause safely exists, because people who have been caught red-handed in serious misconduct usually don't call lawyers. On the other hand, when someone calls me directly and says they've been accused of stealing but they didn't do it, I will be in a position to directly come to my own conclusions on credibility.

    Even aside from credibility, there are often miscommunications that can lead to a friend believing that some of the essential facts are different from what they are. Important contextual factors are often missed.

    (2) The internet is extremely anonymous, and it's quite impossible to hold most people accountable for the accuracy or reliability of their information.

    There's an ancient myth of the Ring of Geiges, which makes the wearer invisible. In the mythology, all who wear the ring become corrupt, because the ability to do self-serving evil acts becomes an irresistable temptation, when no accountability will result.

    As a lawyer, I always have to question credibility...but factual allegations from essentially anonymous sources can't be held to have any credibility at all.

    In other words, I can't think about the comment of Anonymous (5:49) as being anything more than a hypothetical scenario.

    That being noted, I would be surprised if the collective agreement between the TTC and the ATU permits unpaid investigative suspensions, and even more surprised if such a thing wasn't at least retroactively reimbursed if the investigation concluded that an unpaid suspension wasn't warranted.

    I also would take nothing from being told that discharge is possible, without knowing who said so and in what context. There's absolutely no doubt that a disciplinary investigation *can* result in termination; being told so has no probative indication of the probability of a certain investigation resulting in discipline.

  5. Next, we come to the reasonableness of shift lengths and break entitlements...which I'm not in a position to comment on, except to note that, up until very recently, these are matters that would have to have been agreed upon with the ATU, and now has to be either agreed or arbitrated. The ATU is not a weak union, and I have a difficult time imagining the TTC successfully implementing policies requiring a driver to go 8 hours without a washroom break. (I do know, from press releases a couple of years ago, that at least late-night route drivers are permitted to make short stops for coffee or to use the washroom, with certain provisos.)

    In general, snack breaks should not be practically essential, and I would be very surprised indeed if we were talking about more than five hours without a meal break.

    Regardless, however, the policy itself doesn't add any important context to the incident, though the specific facts may - if this incident occurred after several hours of work without a break, that may be somewhat mitigating. On the other hand, if the fellow had just started a shift, then relying on shift lengths would amount to an empty excuse.

    And, whatever the truth of the TTC's policies and practices regarding breaks, labour relations has a rather pithy saying: "Obey now, grieve later."

    As for the assertion of Anonymous (6:19) that he or she can eat safely behind the wheel, there are studies indicating that eating is as distracting and as high-risk as talking on cell phones. I still think there are plenty of shades of grey - there's a difference between taking a small bite while coming to a stop at a red light on dry roads and in light traffic, and opening the packaging while trying to change lanes in heavy but fast-moving traffic in unfavourable conditions. But it's hard to question the bona fides of the policy itself.

  6. I work with this guy. I'm a driver too. The only operators who have "scheduled breaks" are the ones who've got the seniority. I have 5yrs on the job, as does my friend, and we usually have to drive for 4-5 hours straight, no breaks. (I work what we call a straight piece= 8 hours no breaks.) WE schedule our breaks into "the route schedule" as needed. Most routes don't have sufficient time for us to "take breaks". When I say "breaks", we're talking 2-3 minutes, if you're able to get off the bus before passengers storm the doors at the station. The ttc operates on a minimal basis. If they can take 2 minutes off of every run (on a busy route) in order to increase the # of busses on that route, they will. At the expense of the drivers "break time" and customer service. The ttc doesn't even recognize "breaks" in the bus schedule, it's considered "recovery time" for the supervisor to use to correct the route schedule if vehicles are late. So you see, technically we don't get "breaks". We TAKE breaks when we can/need to. I usually spend half my shift "snacking" for a minute or two every time I get to the end of the line. Sometimes we can go for 4 or 5 hours without eating anything other than what we can snack on quickly. Sometimes I have to chose between going to the washroom, or eating, because there isn't time for both. In training, they told us to pack snack foods that you can eat while driving. Since then, the rules have changed, but the time given hasn't. Another reason why we are paid well. It was wrong for my friend to do what he did, he did break a rule. But given the circumstances, a munch on a protein bar is hardly an offense worth firing the guy over. (Yes he was fired, ttc doesn't suspend, they fire you and you have to go through the union to get your job back...hence the investigation). Next they'll tell us we can't scratch or sneeze while driving either. It's getting a bit ridiculous from our point of view.

  7. Four to five hours without a break is not all that uncommon.

    And when you say that "ttc doesn't suspend"...that is not true. Even a cursory look at the reported jurisprudence on CanLII reveals a couple of suspension grievances.

    1. I agree that 4-5 hours without a break isn't uncommon, it's standard with the ttc. What isn't common is that it's every single working day, not just one "busy day" every once and a while, without a chance to take a break. What is also common at the ttc is 8-9 hour shifts with no break at all, every single day, not just occasionally.
      TTC only suspends employees when no(further)investigation is required (i.e. traffic accidents. Basically it's a form of punishment, with or without pay, depending on the circimstances. These suspensions only last a couple of days, and operators jokingly call them "forced vacation".
      My friend has been fired, not suspended. He is currenty at what the ttc calls "step 3" of the investigation, meaning that the union has to deal with the bosses at ttc head office to try to get him his job back. In most circumstances the ttc fires you before an investigation in order to save money, because investigating a power bar muncher requires the brains and power of many highly paid employees at TTC head office.

  8. I can attest to the "facts" of annnymous @5:49. His statements are true. I am good friends with the accused, and work with him (I'm an operator too). He is on unpaid leave, and the union is currenty fighting with headquarters to reinstate him. He has had no prior incidences. He was eating a protein bar, not a chocolate "treat".
    Only operators with significant seniority can get work with scheduled breaks (unless you're working a split shift). I personally drive a straight 8 1/2 hour shift with no scheduled breaks, other than the couple minutes I take out of the bus schedule, every couple of hours to use the toilet, or have a quick snack. Sometimes it takes me an entire shift to finish a "meal". Yes the TTC, ATU and it's members agree to these conditions, which is why we are compensated monitarily for all of the unpleasantries that come with the job of being an operator with the TTC.
    If my friend DOES come back to work, he WILL NOT be reimbursed for lost income, nobdy gets reimbursed for lost income at the TTC if they are relieved of duties and then reinstated.
    Another operator friend of mine was "relieved of duties" for 2 months last summer for picking up his cell phone to turn the power off, while sitting at a red light. There was an undercover on board. He lost 2 months income, and had to use his line of credit to pay his mortgage. He was not reimbursed for lost income.
    My friend the "treat eater" was, in fact, nabbed by an undercover TTC employee (common practice), not a passenger on his bus.

    1. "nobdy gets reimbursed for lost income at the TTC if they are relieved of duties and then reinstated."

      Provably false.

      In the ordinary course, that's going to depend on the terms of the settlement or adjudicated solution between the parties. As I've said, I have no direct knowledge of the terms of the applicable collective agreement, but in labour arbitration generally, when a person is reinstated without back pay, that's the consequence of a substitution of penalty, removing the termination and instead implementing an unpaid suspension. If the union and employer don't settle, it becomes the arbitrator's call, and arbitrators don't do it unless there's justification for it.

      (There's some debate as to whether or not it's appropriate to fix the length of the suspension based on how long it took to get to the hearing. Some arbitrators will just fix a length of the suspension, with the result that the reinstatement will include partial back pay. Others are less bothered by the arbitrariness than they would be by 'rewarding' an employee who engaged in misconduct by an award of back pay.)

      As an example of a reinstatement with back pay within the TTC, arbitrator Lorne Slotnick recently ordered the reinstatement of a Mr. Mark McIlroy "with no loss of seniority, and compensated for any losses, subject to his duty to mitigate."

    2. I'm a TTC employee whom was relieved of duty in the fall of 2011 and i was eventually reinstated but with a financial penalty to which the ATU has grieved. It has taken 6 months to get to a Step 3 grievance meeting to which the supposed 2 investigations that the TTC were conducting into my written complaints I filed were incomplete and no reports have been filed therefore were not available at the Step 3 meeting. One of those investigations commenced following my written complaint in the Fall 2010 and to this date no report has been filed yet my financial penalty still stands. My case is now proceeding to Step 4 and I'm still suffering the concequences of the financial penalty. The thought of employees eventually getting their wages back doesn't pay the rent or put food on the table while they have to wait many months to have the grievance procedures take place. The TTC policy is to relieve of duty then grieve the punishment which takes months to resolve yet the employee is not paid during that time which is similar to my case. How many employees must comment on your blog before you understand that this is common practice at the TTC and all the union can do is grieve it. The company delays or postpones grievance meetings until they are ready to deal with them yet the employee doesn't get reinstated usually until Step 3. Again my Step 3 took 6 months because the company cancelled 3 meetings and rescheduled many weeks later to cancel again. As we have lost the right to strike the union doesn't have much recourse but spend financial resources of membership dues arbitrating cases that could have easily been solved months earlier and yet the employee remains UNPAID until the final resolution. Another bit of info is I had a spotless employment record until this incident in the fall of 2011.

    3. I'm not unsympathetic to the fact that an employee's recourse through the grievance process is imperfect. Having to go through a legal proceeding to get money that you should have been paid up front is, of course, never as good as just getting the money in the first place.

      But the reason that the process is there is to adjudicate whether or not the money should have been paid. It sounds like you're describing a situation where the TTC voluntarily reduced the discharge to an unpaid suspension (which other posters have said doesn't happen), and so now you're grieving it. Fine, you're entitled to grieve it, but you've said nothing that even suggests that the unpaid suspension was in some way wrongful or heavy-handed.

      On a shallow review of arbitral jurisprudence involving the TTC...sometimes the TTC wins, sometimes they lose, but it does not appear to me to be the matter of routine heavy-handed tyranny that's being described by a barrage of apparent employees venting about their employer under the protection of the internet's anonymity.

      With an employer the size of the TTC, there are bound to be huge numbers of disciplinary proceedings. So no, a few people complaining on the internet about their approach to discipline doesn't convince me that the TTC must be doing something wrong.

      As for the core of this matter, being whether or not the TTC's response to the chocolate bar is appropriate...when I have anonymous commenters saying variously that he's been suspended, he's been fired, etc., while making verifiably false assertions such as that nobody at the TTC gets reimbursed for lost income following reinstatement, it carries very little weight with me. This is to be put beside a *complete* absence of specifics from the TTC or the ATU, including Bob Kinnear complaining about the TTC disciplining for such minor things but never mentioning what discipline was imposed; I'm unwilling to draw any conclusions on the point.

    4. My case involves workplace harassment and stalking by a supervisor over a 2 year period that ultimately led to my being relieved of duties for following the corporate Respect and Dignity Policy as per Bill 168. Both investigations were flawed as none of the witnesses from any of the many incidents have ever been interviewed hence the union fighting the penalty as the penalty was a reprisal for reporting the harassment and for making an unsafe work location complaint as per the Occupational Health and Safety Act. The union believes my case is very strong hence the many meetings that were cancelled by the company due to their lack of any reports or evidence to justify and kind of penalty or corrective action against me. They are now trying to come up with a reason to justify the lack of proper investigation and of the supervisors heavy handed actions. In the Step 1 grievance report the senior foreperson even wrote that I requested a formal investigation including interviewing witnesses and he also wrote he "denied my request to interview witnesses". Is that not a flawed investigation and a violation of Bill 168 of the Occupational Health and Safety Act? Yet I still am financially penalized and my employment record tainted because of their lack of action. The union even obtained a written appology from the foreman in question for a previous incident concerning his abusive action and violating my Human Rights due to discrimination of a disability. We are now 7 months since I was wrongfully relieved of duty yet no resolve seems to be near according to the union. My case I've been told by the union is stronger than the Stina arbitration case.

    5. "Is that not a flawed investigation and a violation of Bill 168 of the Occupational Health and Safety Act?"

      I don't give legal advice on here, so I can't answer that, but I do have a series of entries on this blog dealing with the limited scope that the harassment provisions of Bill 168 have thus far been interpreted as having.

    6. Sorry, I wasn't asking for legal advice but just trying to point out the fact that the company has failed to investigate my written complaints properly including the failure to interview witnesses because if they had the company would have then been knowledgable and held further liable for failing to stop the harassment which includes protecting my mental health and safety let alone wrongful dismissal. The have no justifiable reason to relieve me of duty let alone have I ever been subjected to any form of progressive discipline before I was relieved of duties. That is the kind of heavy handedness the other employees are trying to tell you happens frequently at the TTC.

  9. You said this. Quote.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.
    My response. I am a ttc driver that has been diagnosed with type 2 diabetes while employed. I was not a diabetic before. Are you suggesting that they discriminate against diabetics? I do not have the seniority needed for me to get the kind of shifts that would allow for me to have a break in order to eat every three hours as is suggested by my Doctor. Plus I must check my sugar level very frequently to ensure my sugar is in check. So I must eat during my 9 hour NO BREAK night shift. Yes it effects the line as most times I will have to leave the end of the line late. So the contract being the contract was fine BEFORE I was diagnosed but now that I am a diabetic are you suggesting they fire me? As for the safety issue of eating a power bar...I take my hand off the wheel to scratch myself if needed, cough into my sleeve if needed, hand out a late request transfer if needed, turn on the wipers if needed, turn on and off the heat or air if are you saying I am not a good enough driver to eat a granola bar while driving, but I can do all those other things? Just sayin......
    By the way, as a lawyer, you of all people should know a straw mans argument and you presented it quite eloquently, but its still straw.
    Oh and I presented this as an ANON for safety reasons. If you don't get that, sorry.

    1. "Are you suggesting that they discriminate against diabetics?"

      I didn't say that. I said it's complicated, and there may be an argument to be made.

      There are shades of grey here. There are clear cases - for example, if a TTC driver became blind, the TTC would be easily justified in refusing to continue to employ him, at least as a driver. Indeed, being a driver requires medical fitness in many respects. I once dealt with a former truck driver who was no longer able to drive because spinal surgery had limited his neck mobility.

      But something like diabetes, with different levels of severity, different capabilities of management, etc., can be very grey indeed. I have dealt with situations where diabetics in safety-sensitive positions have experienced severe lapses in judgment - fortunately, the situations I've seen have not resulted in injury, but some are close cases.

      As for whether or not one can safely remove a hand from the wheel to eat a candy bar, my understanding of the empirical evidence on distracted driving is thus: A hand off the wheel is nearly immaterial. There's evidence suggesting that talking on the phone hands-free is just about as dangerous as talking on a phone while holding the phone to your ear. It's a matter of attention, and I'm very poorly positioned to second-guess the legitimacy or bona fides of TTC policies determining what's permissible and what's not while navigating a 12 ton vehicle at high speeds.

      As I've said, I'm dealing with hypotheticals here, lacking reliable information as to the particulars of any scenario; my point is simply that there's a complicated legal framework and that it's conceivable that there could be plausible justifications in play.