Testing a ‘nesting’ TTC driver for pot was reasonable, arbitrator rules

It was reasonable to test a Toronto Transit Commission driver for cannabis after he was caught “nesting” in his bus that was parked on a residential street with the lights off, his seat reclined as far back as it could go and his window shade pulled down, an arbitrator has ruled.

The driver, who is only identified as A.C. in the decision, was wearing a “disheveled” uniform and his eyes were closed when John Prosser, then the TTC’s chief mobile supervisor, found his bus parked on Berwick Avenue, south of Eglinton subway station at around 11:30 p.m. on June 19, 2019.

“There is no doubt but that he was fast asleep,” said the recent decision from arbitrator William Kaplan that described how the employee had been “nesting,” meaning he had taken steps to deliberately go to sleep on the job.

The driver in question, who “occupied a designated safety-sensitive position” was assigned that night to the #51 Leslie bus from 8:52 p.m. to 5:06 a.m.

When Prosser found the darkened bus parked on a residential street, the driver’s head was leaning to one side and he “was taking deep breaths indicating … he was fast asleep,” said the decision, which notes the supervisor woke the driver up by knocking on his window.

The driver was “startled,” and “was sweaty and clammy,” the supervisor testified.

The driver “was yawning, appeared to have the flu” and he had, Prosser recalled, “some apparent personal hygiene issues.”

The supervisor asked the driver why he’d been sleeping, but did not get an answer.

“At one point, he said he dozed off. He asked Mr. Prosser to give him a chance, telling Mr. Prosser that it would not happen again with the objective of Mr. Prosser giving him — the (driver) — an opportunity to continue at work. Mr. Prosser declined the invitation.”

The driver “agreed that his uniform was unpressed and untucked; that was how he normally wore it, and he was also normally sweaty,” said the decision. “Likewise, he normally drove the bus with the seat fully reclined. It was quite possible that he yawned several times; it was late at night.”

Prosser testified that the driver “would not provide straight answers to clear questions (and there were long pauses between questions and answers), he was evasive, his movements were not fluid (as if he had to think about them), he had been sleeping, appeared exhausted, was yawning a lot, (and) his uniform was a mess.”

Prosser “rejected the suggestion that the (driver) was simply fatigued: ‘something was impairing his judgement.’”

Prosser contacted Troy Morris, the TTC’s night weekend assistant manager, who showed up at the scene 20 minutes later and soon agreed the driver needed to be tested.

The driver was unaware that he was not supposed to park his bus on a residential street, said the decision.

“Operators are trained that parking on residential streets is not permitted,” TTC management argued. “Significantly, the (driver) did not deny being impaired when told he was to be tested.”

Morris took the driver to Wilson station, where the driver took a breathalyzer test and then provided a saliva sample.

He “tested positive for cannabis” early in the morning on June 20, 2019.

The TTC fired him July 24, 2019, and the driver filed a grievance six days later.

The driver’s “explanation about how he normally wore his uniform was, the employer argued, unbelievable. There could be no dispute that (he) was carelessly performing his job.”

The Amalgamated Transit Union argued the driver “was exhibiting signs of fatigue,” but that did not establish reasonable cause for drug and alcohol testing.

But management should have ensured he got a drive home after the cannabis test, Kaplan said.

“The TTC’s obligation was crystal clear,” the arbitrator said.

“The union argued that allowing the (bus driver) to drive himself home proves that there was never any reason in the first place to believe that he was impaired, and that this demonstrates the absence of any reasonable cause for testing. I do not accept that submission. It is true that the (bus driver) was allowed to drive himself home. And it is also true that that decision is very hard to understand. However, that ill-founded decision — to allow someone suspected of being impaired to drive himself home — came after the decision to test had already been made, and that was a decision that I conclude was justified in the circumstances as there was reasonable cause to test.”

One of the principal objectives of the TTC’s Fitness for Duty Policy “is to ensure that employees report to work fit for duty, which includes being free from the negative effects of drug or alcohol use,” said the Nov. 1 decision.

Testing for both is supposed to “take place whenever a supervisor has reasonable grounds to believe that the actions, appearance or conduct of an individual while on duty are indicative of the use of drugs or alcohol,” said the arbitrator.

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