Canadian Safety Reporter

4 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | October 2018 | News than most of the other drivers. Because of this, his ideal driv- ing position was sitting straight with his legs, ankles, and hips at 90-degree angles. When the employee drove the passenger van, he didn't have a lot of room and experienced cramping in his legs because he wasn't able to sit in his ideal position. He was concerned the cramping affect- ed his ability to brake quickly in the event something happened, thus endangering himself, any passengers in the van, and any members of the public nearby. He experienced the same prob- lem with the converted school bus. All of the buses in the fleet had air seats for the driver that could be adjusted backwards by up to five inches, upward or downward up to eight inches in some of the buses, along with backrests that could tilt. BBL in- sisted that the air seat in the van allowed as much room for the driver as in any of the highway coaches, but the employee said that the seats in the van and the school bus couldn't be adjusted enough to allow him an ideal driving position. New seat put in one vehicle; another modified The employee was driving the van on Sept. 19, 2017, on a trip to Winnipeg. During a rest stop, he sent a text message to the BBL office saying his "legs are start- ing to cramp up really bad" to the point where it was difficult to even walk. BBL responded by asking the mechanic to review the issues the employee had raised and replace the air seat in the van with a new factory seat if necessary. This was completed within a few days. BBL also had the mechanic take out pad- ding from behind the seat of the school bus to allow more room. BBL wasn't able to make any further changes to the driver's seats of the two vehicles, as they were subject to international safety standards and any addi- tional modifications would vio- late those standards. As it was, the company believed the seats had been cleared and approved for "utmost comfort and safety" and didn't need any more modi- fications, particularly since none of the other drivers who were over six feet tall had complained. The vehicles were also in- spected every three months by Manitoba Public Insurance (MPI), including a review of available space for drivers. MPI approved the modifications to the van and school bus and pro- nounced them safe to operate. However, the employee still had concerns about the van and met with BBL's owner. The own- er showed the employee the new air seat in the van and allowed him to sit in it, but the employee said it didn't sufficiently address his concerns. The owner offered him to take a drive in the new seat, but the employee declined. On Oct. 13, the employee wrote a letter to the owner indi- cating that he wouldn't be able to drive the van and the school bus "as the seats do not adjust suffi- ciently for me to be comfortable." He suggested he be accommo- dated with assignments only on the highway coaches and that an ergonomic assessment be done on the van and school bus. He mentioned he had received an ergonomic assessment from his previous employer, which had been beneficial. BBL suggested the employee could order an ergonomic assess- ment on its own, but it wouldn't pay for one. The employee then consulted the company's health and safety representative, say- ing that he felt that the owner had "verbally attacked" him and threatened to terminate his em- ployment. On Nov. 17, the owner told the employee that since the employ- ee was unable to drive the van and the school bus, "there's no reason for you to keep driving" for BBL and issued him a record of employment. The employee filed a complaint claiming BBL discriminated against him for raising safety issues. A Manitoba safety and health officer deter- mined that BBL had not taken a discriminatory action under The Workplace Safety and Health Act and BBL had terminated the employee's employment for le- gitimate business reasons — he couldn't do the job required of him — not an anti-safety ani- mus. The employee appealed to the province's labour board. On Jan. 19, 2018, the em- ployee told a doctor that he had suffered an injury to his right leg while operating the van on a trip to Winnipeg and back, as the driver's seat had forced him into a position that was too low and too close to the pedals, which he had to maintained for hours on the road. The doctor recom- mended an ergonomic assess- ment. The board agreed that the employee had raised issues af- fecting his safety and the safety of others under the act, when he expressed concern over the driv- er's seats in the van and school bus. In addition, is was "plausi- ble" that there was a connection between the employee's safety concerns and the termination of his employment, as the main reason the employee wasn't able to drive was his safety concerns, said the board. However, the board noted the following: • The employee had only worked for BBL for about one month. • A condition of employment was that he be able to drive all the buses, which he understood. • The seats were adjustable. • MPI had confirmed all the buses were safe to operate. • BBL responded to the employee's concerns by changing the seat in the van and modifying the seat in the school bus to the extent it could while still meeting international safety standards. • The employee didn't try to drive the van after the new seat was put in. • BBL said the employee could obtain an ergonomic assessment, though at his own expense. • The employee didn't provide BBL with any medical documentation relating to his issues. Ability to drive all vehicles a condition of employment The board found BBL had ad- dressed the concerns raised by the employee and had no reason to make further modifications, given the safety standards and lack of medical documentation. The employee also declined to try the new seat or pay for an ergonomic assessment — though he refused to drive the van or school bus without one — so there wasn't much else BBL could be expected to do, the board said. The board also found BBL was "clear and unequivocal" that it terminated the employee be- cause he couldn't fulfill the con- dition of employment that he be able to operate all vehicles in the fleet. The employee's continued refusal to do so — despite BBL trying to address his concerns — affected BBL's operations and provided a reason for dismissal. The employee's complaint was dismissed. For more information see: • U.L.H. and Brandon Bus Lines, Re, 2018 CarswellMan 326 (Man. Lab. Bd.). Bus driver < pg. 1 Employee didn't want to pay for ergonomic assessment Credit: Shutterstock/Petr Student

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