Canadian Labour Reporter

March 20, 2017

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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8 Canadian HR Reporter, a Thomson Reuters business 2017 ARBITRATION AWARDS March 20, 2017 with Bethune regarding the writ- ten material he received during TTC-mandated sensitivity train- ing the day before. The training had been ordered after Davis was photographed giving the finger to a passenger. He received a two- day suspension and the require- ment to undergo training. During the conversation with Bethune, Davis reportedly named three supervisors he didn't like. She testified he said, "If anything ever happened, like losing my job, I'd have no problem coming in here and shooting them." Bethune said she tried to calm him down, give him the opportu- nity to refute the statements and categorize them as jokes. But Da- vis continued along the same line. Eventually, Bethune left to re- lieve another collector. But Bethune continued to pon- der what Davis said and contacted a union steward and her husband (another steward) for advice on what she should do. She ultimate- ly decided to contact a manager, Peter Nasevski, who was at the station where she was working. In the incident report, Bethune wrote: "I don't wish anything bad for Mark but I am concerned for the safety of others. I wish he didn't say what he said but I feel morally responsible." The next day, a transit enforce- ment officer interviewed Bethune and the Toronto police were con- tacted. On Aug. 9, Davis was sus- pended with pay. By the time he was terminated on Sept. 25, he had been criminally charged with making death threats. Davis rejected the suggestion he made the threats and after a July 27, 2015, trial, he was acquit- ted because the judge felt there was enough reasonable doubt. The union, Amalgamated Transit Union, Local 113, grieved the firing, arguing a suspension was warranted, not termination. Because Davis didn't work di- rectly with the three supervisors, the reported threats should be considered hypothetical, not pre- meditated, it said. The union argued Davis' long service (26 years), lack of expe- rience outside the TTC and no post-secondary training would impose an undue hardship on him. As well, according to the union, a 20-page report written by foren- sic psychiatrist Jonathan Rooten- berg, who spent three hours with Davis, indicated his potential for violence was rated at four out of 20 on a psychopathy checklist. Any- thing more than 13 would have re- quired more evaluation, accord- ing to Rootenberg. Arbitrator Lorne Slotnick dis- missed the grievance, largely on the basis of the credibility of the only two witnesses. "(Bethune's) actions con- formed to what would be ex- pected of a person in her situation — uncomfortable with Davis's comments, conflicted about whether to report them, seeking advice from a steward and her husband before acting, and ul- timately deciding that she could not live with a failure to report the comments if Davis made good on the threats," said Slotnick. Even though Davis' risk to com- mit violence was deemed to be low, it would adversely impact other TTC workers, should he be returned to his position, accord- ing to Slotnick. "While I agree that Davis will likely never engage in physical violence, the three managers who were targets of his threats, as well as Bethune and all his other co- workers, deserve a workplace where they do not have to worry about the kind of threats made by Davis, even if they were idle." Reference: Toronto Transit Commission and Amalgamated Transit Union, Local 113. Lorne Slotnick — arbitrator. Marni Tolensky for the employer. Katherine Rowen for the employee. March 3, 2017. Sanitation worker fired after coworker steals treats WHEN SANITATION truck driver Kenneth Porter discovered some chocolate peanut squares were removed from his truck, it caused him to angrily berate the co-worker who admitted to what he called a harmless joke. On Feb. 17, 2016, Porter was given the squares by a woman on his refuse route in Fort McMur- ray, Alta. The woman regularly handed out treats to workers, which were usually taken back to the lunchroom and shared. But before Porter returned to the lunchroom, he stopped at a Tim Horton's restaurant and went inside. When he returned to the truck, the squares were gone. Porter had seen colleague Jeff Fitzpatrick at the same Tim Hor- ton's and thought he was to blame. When Porter arrived at the lunchroom, Fitzpatrick dropped the package of squares in front of him and laughed. Porter said he felt "hurt and embarrassed" and stood up to confront Fitzpatrick. He called him a "f---ing thief " and said Fitzpatrick had no right to go into other worker's trucks. After a brief but heated confronta- tion, Porter left the office. Lee Chambers, supervisor col- lections, was advised about the in- cident via email and the pair spoke the next day. Porter said the most troubling thing about Fitzpatrick going into his truck was the inva- sion of privacy in a space that con- tained personal items such as a wallet or a cell phone. After speaking to witnesses, a report was written by Cham- bers that said in part: "Ken was threatening to kick Jeff 's ass and to punch him in the face." Another meeting took place on March 15, and Chambers testi- fied he didn't believe Porter's ver- sion of the events and that he did threaten Fitzpatrick. On April 1, Porter was termi- nated. A letter that accompanied the firing said: "Since October 2013 you have received three dis- ciplinary suspensions on file and one written warning. We have seen no improvement in your be- haviour with continued outbursts and aggression towards co-work- ers and members of the public." The union, Canadian Union of Public Employees, grieved the fir- ing and argued the investigation was more of a "witch hunt" rather than a fact-finding effort. Arbitrator Alan Beattie upheld the grievance and ordered the Re- gional Municipality of Wood Buf- falo to reinstate Porter and substi- tute a five-day suspension for the termination. "I consider that to be a serious response to Porter's participa- tion in the incident and consistent with the concept of progressive discipline. The grievor will now be on notice that any such anger- related conduct in the future will, in all probability, result in termi- nation," said Beattie. Chambers' actions during the investigation contributed ad- versely to the termination deci- sion, according to Beattie. "We cannot confirm what he said in the interview because Chambers did not take notes. That is another indicia of a flawed investigation." Fitzpatrick was fingered as the initial cause of the lunchroom event, which was not properly taken into account. "He knew the grievor can have a short fuse and he deliberately set out to push his button by taking the squares out of the truck and later tossing them on the table and laughing at the grievor in front of his co-workers " said Beattie. "The reaction was predictable given how humiliated he felt at the provocation which was on top of the grievor's already festering in- dignation at having had his truck entered and the squares removed," said Beattie. Reference: Regional Municipality of Wood Buffalo and Canadian Union of Public Employees, Local 1505. Alan Beattie — arbitrator. Candace Bernstein, Charles Warriner for the employer. Robert Szollosy for the employee. Feb. 19, 2017

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