Employee wasn't at work when he allegedly harassed a member of the public
An Ontario transit employee’s last chance agreement only applied to his behaviour while at work, not outside of the workplace, an arbitrator has ruled.
The employee was an operator with an urban transit provider. After some incidents where the employee displayed unprofessional and aggressive behaviour at work, his employment was terminated. However, the union negotiated with the employer and the employee was reinstated under a last chance agreement. The agreement stipulated that if the employee showed any further unprofessional and aggressive behaviour towards “supervisory staff, employees/co-workers or customers” or contravened the employer’s workplace violence policy, code of conduct, or the Ontario Human Rights Code, he would be immediately fired.
In December 2011, the employer received a complaint from a member of the public. A woman claimed the employee drove by her in a parking lot in his own car and gave her the middle finger, then turned his car around and yelled a profanity at her. The woman said she ran into a store for safety but the employee followed her. Later, when she left the store the woman claimed the employee glared at her as he drove away.
The employer felt this behaviour, which the employee didn’t deny, violated his last chance agreement and terminated his employment.
The union objected to the termination, arguing the employee’s behaviour didn’t fall within the scope of the last chance agreement and shouldn’t be used as the basis for termination. The union said the agreement set out the “specific classes of people” with whom the employee must display professional behaviour and avoid aggressive confrontations. Since the person who complained about the behaviour was a member of the general public outside of the employer’s workplace, she wasn’t supervisory staff, a co-worker or a customer at the time of the incident. Nor did it happen in the workplace, so it wasn’t subject to the employer’s policies, said the union.
The union also argued that the workplace violence policy and code of conduct weren’t incorporated into the collective agreement, so any violation of them shouldn’t mean immediate dismissal because they were separate from the last chance agreement.
The arbitrator agreed with the union that the workplace violence policy and code of conduct didn’t apply to the incident, because it happened outside of the workplace. The employee’s behaviour did breach the standard set in the last chance agreement, but the person to whom he directed it was not someone specified in the agreement, said the arbitrator.
The arbitrator found that the last chance agreement referred to the code of conduct and workplace violence policy, but only those two polices. Since those policies specifically stated they applied to conduct in the workplace, they didn’t apply in this incident and the employer could not use the last chance agreement as a reason for terminating the employee’s employment. See Toronto Transit Commission v. A.T.U., Local 113, 2012 CarswellOnt 9024 (Ont. Arb. Bd.).
