Canadian Employment Law Today

6 | April 26, 2017 Canadian HR Reporter, a Thomson Reuters business 2017 Aug. 5, 2014, that covered dealing with diffi- cult customers, the TTC's workplace violence policy, the Ontario Occupational Health and Safety Act (OHSA), and the need for appro- priate and professional conduct at work. e day after the sensitivity training, Da- vis was working at a ticket booth in a station when a female co-worker arrived to cover for him while he took his lunch break. ey were friendly acquaintances, often chat- ting and joking about their issues with TTC management. Davis showed some of his sensitivity train- ing materials to the co-worker and left them with her while he went on lunch. When he came back, they discussed interviews they had had with a particular manager. During the conversation, Davis said "I'm the one," three times and then said: "If any- thing ever happened, like losing my job, I'd have no problem coming in here and shoot- ing them." According to the co-worker, he repeated that he'd have "no problem." e co-worker said she didn't want to hear what Davis was saying and tried to light- heartedly say if he started shooting, he could hit her. Davis replied that he would kill only managers, not employees, and mentioned three managers by name. Near the end of the conversation, Davis said "I'd die for that cause" and she told him to focus on his up- coming vacation and "get his head straight." Comments reported to management e co-worker was concerned about the conversation and spoke to her union stew- ard and her husband, who was also a union steward. Both advised her to report Davis' comments, so she talked to a manager later that afternoon. At the manager's request, the co-worker filled out an incident report that described Davis' comments about shooting people and killing managers, though she left out the comments about him dying for the cause. e co-worker also spoke to a transit en- forcement officer and police officers after the TTC called them. e co-worker was temporarily assigned to an office job for her safety and a couple of weeks later filled out a supplementary report, which added the "die for the cause" comment and the three manager's names. On Aug. 7, the day after the conversation, the TTC relieved Davis of duty with pay while it investigated. He was told there were allegations of threatening comments and offered help from the employee assistance program, but he refused. He explained that he was surprised by the allegation and was probably misunderstood because he joked a lot, emphasizing that he "has no animos- ity towards anyone." e TTC's head of sta- tions, who was involved in the investigation, was surprised at the last comment because he hadn't disclosed the nature of the allega- tions to Davis or who had reported them. e investigation revealed no evidence other than the co-worker's account of the comments. e TTC felt the co-worker's account was credible, since it was rare for a union member to come forward with allega- tions against another union member, and she had no reason to make up the story. e police charged Davis criminally with three counts of uttering death threats. Davis was suspended without pay on Sept. 25 and met with a senior manager to get his side of the story. However, because of the ongoing criminal case against him, Davis said noth- ing on the advice of his lawyer. e TTC terminated Davis' employ- ment for engaging in workplace violence as defined by the OHSA — which includes "a statement or behaviour that it is reasonable to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker." e union — Amalgamated Transit Union Local 113 (ATU) —grieved the dismissal. Davis denied making the comments and said the co-worker had made them up. He suggested her motivation for the falsehood could have been an incident a month earlier when he left some luggage he had been given for 25 years of service in a ticket booth and she commented that she shouldn't have let him because a disgruntled employee could put a bomb in it. He also suggested the co- worker was put up to it by a female manager as "they have a women's group at work and they're all connected." Davis also said he thought the co-worker was responsible for an incident in which his bicycle had a "for the janitor" sign put on it. Arbitrator Lorne Slotnick agreed with the TTC's assessment of the co-worker's cred- ibility. ere was no personal animosity between her and Davis, and she took some time to get advice from her union steward and her husband before reporting the com- ments to management, Slotnick said. Slotnick also found Davis' credibility suf- fered from his attempts to explain why his co-worker would lie. Evidence showed it wasn't uncommon for employees to leave possessions in ticket booths, like Davis did with the luggage, and it didn't make sense for that situation to lead the co-worker to make a serious accusation against him. And as for the involvement of the female manager and the women's group that Davis suggested, Slotnick found that explanation to be "sim- ply too far-fetched to be considered seri- ously." In addition, Slotnick pointed out that Davis had good reason to lie to try to save his job. Arbitrator Slotnick found that Davis made the comments as reported by the co-worker and those comments constituted workplace violence under the OHSA. ough Davis had more than 25 years of service with the TTC, arbitrator Slotnick determined dismissal was appropriate. Da- vis had previous discipline related to similar behaviour and the comments were particu- larly egregious since they came a day after Davis had attended sensitivity training. In addition, Slotnick put significant weight on the fact Davis denied everything and tried to shift the blame onto his co-worker. "Had Mr. Davis acknowledged his actions and apologized for them, he would have had a far stronger case for reinstatement, in my view," arbitrator Slotnick said. "But with his failure to do so, other employees have no as- surance that if he returns, their workplace will be free of the kind of threats that those employees should not have to endure." For more information see: • Toronto Transit Commission and ATU, Lo- cal 113 (Davis), Re, 2017 CarswellOnt 3202 (Ont. Arb.). WEBINARS Interested in learning about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as Ontario's new sexual violence and harassment legislation, compliance with the Temporary Foreign Worker Program, managing hidden disabilities in the workplace, and workplace harassment. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. « from COMMENTS on page 1 Worker denied any animosity towards anyone

• Cover