A bus driver for the City of Cornwall in Ontario was fired after headbutting a pedestrian in a violent altercation, a decision that was upheld by an arbitrator.
The bus operator, K.M., was dismissed from his position in November 2022 after the physical confrontation with a pedestrian, identified as Mr. B, during a scheduled stop on his bus route in downtown Cornwall.
The altercation, which occurred in the evening of Oct. 25, 2022, was partially captured by video cameras mounted inside the buses. Despite limitations in the footage — obscured by poor lighting and partial blockages caused by the buses — the video was heavily relied upon by the arbitrator in determining K.M.’s role in the incident.
Violent altercation
K.M. had stopped his bus on the street ahead of schedule, in line with a common practice among bus operators. Exiting the bus with some of his passengers, he engaged in what he described as a brief verbal exchange with Mr. B, who had approached him to ask for a lighter. According to K.M.’s testimony, Mr. B grabbed and twisted his wrist, which escalated into a head-butting incident and culminated in K.M. pushing Mr. B against the bus.
The employer argued that K.M. was dishonest in his reporting of the incident and was, in fact, the instigator of the physical aggression. “He started lying to the employer about the altercation as soon as he began driving away from the scene,” counsel for the employer said in his submission, adding that K.M.’s account was contradicted by video evidence.
The video footage revealed that only a few seconds elapsed between Mr. B approaching K.M. and the physical confrontation. This narrow timeline, the arbitrator noted, made it “almost impossible” for events to have unfolded as the driver described them. Contrary to K.M.’s claim that he acted in self-defence, the video appeared to show that it was the driver who initiated the head-butt, and his forceful push of Mr. B into the bus was more aggressive than he had admitted.
“On a balance of probabilities, I find that the grievor was the aggressor in the altercation,” the arbitrator wrote, concluding that the employer had just cause for termination. The ruling also noted that K.M.’s failure to check whether Mr. B was injured after the push and his subsequent dishonesty about the events justified his dismissal.
No de-escalation training: Union
The union argued that the termination was unjust and that K.M.’s actions were provoked by Mr. B’s aggressive behaviour. It emphasized that the entire incident lasted less than a minute and that K.M. had been fearful and acted in a state of confusion. The union also highlighted the fact that bus operators in Cornwall had not received training on de-escalating confrontations with aggressive members of the public, despite an increase in incidents since the COVID-19 pandemic.
During cross-examination, evidence showed that K.M. had never received de-escalation training, a point emphasized by the union as a failure on the part of the employer. This argument, however, did not sway the arbitrator. While acknowledging the lack of training, the ruling stated that “the other person involved was not a passenger, but a pedestrian,” and the employer’s health and safety obligations under the Occupational Health and Safety Act did not extend to this specific situation.
The ruling also addressed allegations by the union that the investigation was flawed due to the lack of union representation during an initial interview between K.M. and his supervisor. The arbitrator dismissed this argument, ruling that the absence of union representation at that stage was not relevant, particularly since it was an informal encounter where K.M. reported the incident himself.
Throughout the investigation and arbitration process, K.M. maintained that he had acted in self-defence, claiming that Mr. B had grabbed and twisted his wrist and later head-butted him. However, under cross-examination, K.M. admitted that the video footage made it difficult to definitively support his claim that Mr. B initiated the head-butt. The arbitrator noted that K.M.’s “loud, angry, aggressive voice” on the video contradicted his assertions that Mr. B had been the primary aggressor.
Importance of honesty
In reaching his conclusion, the arbitrator emphasized the importance of honesty in K.M.’s role as a bus operator, given the minimal supervision operators receive while on the job. “It would be unthinkable, in my opinion, that an operator who had committed a violent assault in the course of his work and had consistently lied in an attempt to cover up his culpability should be reinstated in employment,” the ruling stated.
The union had also pointed to examples of other bus operators who had engaged in misconduct but received lesser penalties. However, the arbitrator dismissed this argument, noting that the cases cited did not involve violent conduct toward pedestrians and were therefore not comparable.
Ultimately, the grievance was dismissed, and K.M.’s termination was upheld. The arbitrator concluded that the employer had acted within its rights in dismissing him for his actions and the dishonesty that followed.
For more information, see Corporation of the City of Cornwall v Amalgamated Transit Union, Local 946, 2024 CanLII 81687 (ON LA).
