Lack of witness testimony puts brakes on driver’s discipline

June 10, 2016

Employment Law BookA woman’s failure to testify at an arbitration hearing on her complaint meant a wheelchair van driver’s account of the incident went unchallenged – nullifying his discipline. 

The technician received a disciplinary warning for breaching work rules on deliberate inattention to patient care or engaging in conduct detrimental to care; rudeness or discourtesy; and unsatisfactory performance.

Discipline stemmed from an incident in which a woman accompanied her husband to a dental appointment.

(Westlaw users: Click here for the latest from the Labor Arbitration Information System.)

Instead of sitting in a jump seat next to her husband in the rear of the van, she sat next to the driver, attempted to engage him in a conversation and made various racist and profane comments.

The driver told the woman she was distracting his driving, and he turned up the radio volume to end further conversation.

Subsequently, the woman complained to the employer, who investigated and concluded that the driver was guilty of several work rule violations. He was warned be more polite and compromise to ensure customer satisfaction. Additionally, he was put on notice that future performance issues would result in further discipline up to and including termination.

The arbitrator ruled that the employer lacked just cause to discipline the grievant.

Although management expressed legitimate concern about a driver’s conduct when transporting patients, the arbitrator said the woman’s failure to testify proved fatal to the employer’s case.

After reviewing the driver’s unchallenged testimony, the arbitrator deemed the complainant’s behavior “egregious.” She called the driver “Robert DeNiro” and attempted an “overly friendly relationship” with him, the arbitrator said, and the grievant’s concern about distraction was understandable.

The arbitrator added that while the driver might have taken things a step too far by blasting the radio, the move had the intended effect: to keep the woman from making more profanity-laced and racist comments when shouting to her husband in the back of the van.

The arbitrator sustained the driver’s appeal.

Community Care Ambulance and NAGE, 44 LAIS 129, 2015 WL 9918434