Deering and Treasury Board (National Defence)

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166-2-26518
Deering and Treasury Board (National Defence)

Before: P. Chodos
Appearances: D. Landry, for the Grievor; M. Crocker, for the Employer
Decision rendered: February 8, 1996

Termination - Incompetence - grievor was employed as a driver on a military base - he had four minor accidents which in the employer's opinion were preventable - this led employer to suspend permanently his military driving privileges - employer then terminated grievor's employment effective September 21, 1994, for incompetence as a professional driver and for the loss of his departmental driver's permit - accidents occurred on August 18, 1992, December 20, 1993, and February 15 and May 19, 1994 - evidence established that at the relevant times grievor had suffered from cataracts and that employer was aware of this fact - grievor had the cataract removed from his right eye in August 1993 and from his left eye in July 1994 - adjudicator concluded that grievor's vision problems were a significant factor in the last two accidents - adjudicator doubted employer's good faith as employer had treated the four accidents in question as being the result of intentional malfeasance and had never advised the grievor that his competence was in question - also, in light of grievor's physical condition of which employer was aware, employer had an obligation to enquire into his medical status before making a decision to terminate his employment - employer's failure to do so undermined the reasonableness of the employer's appraisal of grievor's lack of competence - neither could employer hide behind its decision to revoke grievor's departmental driver's permit - adjudicator directed employer to reinstate grievor retroactive to the date of his termination.

Grievance allowed.

Cases cited: Bell Canada v. Hallé et al. 29 CCEL 213; Re Hertz Canada Ltd and Office & Technical Employees' Union, Local 378 (1995), 46 L.A.C. (4th) 416; Kampman v. Treasury Board 1995 1 F.C. 306.