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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