Worker’s denial and suggestion that co-worker fabricated story hurt his credibility
An arbitrator has upheld the dismissal of a Toronto transit worker who voiced his displeasure with management with comments to a co-worker about committing violent acts.
Mark Davis, 54, was a fare collector for the Toronto Transit Commission, working in ticket booths at stations on the city’s subway and rapid transit lines. He was hired in 1989 and worked as a bus driver before becoming a fare collector.
In early 2014, Davis was suspended for two days after an incident in which he gestured with his middle finger at a customer with whom he was having a dispute. The customer photographed his gesture and complained to the TTC about it.
In addition to the suspension, the TTC required Davis to attend sensitivity training on Aug. 5, 2014, that covered dealing with difficult customers, the TTC’s workplace violence policy, the Ontario Occupational Health and Safety Act (OHSA), and the need for appropriate and professional conduct at work.
The day after the sensitivity training, Davis 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. They were friendly acquaintances, often chatting and joking about their issues with TTC management.
Davis showed some of his sensitivity training 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 anything ever happened, like losing my job, I’d have no problem coming in here and shooting them.” According to the co-worker, he repeated that he’d have “no problem.”
The co-worker said she didn’t want to hear what Davis was saying and tried to lightheartedly 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 upcoming vacation and “get his head straight.”
Comments reported to management
The co-worker was concerned about the conversation and spoke to her union steward 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. The co-worker also spoke to a transit enforcement officer and police officers after the TTC called them.
The 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 animosity towards anyone.” The TTC’s head of stations, who was involved in the investigation, was surprised at the last comment because he hadn’t disclosed the nature of the allegations to Davis or who had reported them.
The investigation revealed no evidence other than the co-worker’s account of the comments. The TTC felt the co-worker’s account was credible, since it was rare for a union member to come forward with allegations against another union member, and she had no reason to make up the story.
The 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 nothing on the advice of his lawyer.
The TTC terminated Davis’ employment 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.”
The 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 credibility. There 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 comments to management, Slotnick said.
Slotnick also found Davis’ credibility suffered 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 “simply too far-fetched to be considered seriously.” 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.
Though Davis had more than 25 years of service with the TTC, arbitrator Slotnick determined dismissal was appropriate. Davis had previous discipline related to similar behaviour and the comments were particularly 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 assurance that if he returns, their workplace will be free of the kind of threats that those employees should not have to endure.”
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