Past discipline that was supposed to have expired became part of decision
An Ontario worker has gotten his job back because past discipline that should have been scrubbed from his record factored into his termination.
Clayton Jessett was a transit security officer for Metrolinx, a public transit authority in the Toronto area, since 2011.
Transit security officers are appointed by the Ontario Provincial Police and have similar roles as police officers on Metrolinx property such as stations and onboard trains.
The collective agreement between Metrolinx and its union, Amalagamated Transit Union (ATU), had a sunset clause that stipulated records of all disciplinary action were to be removed after 18 months and letters of counsel should be removed after 12 months if the employee remained discipline-free. Verbal and written complaints from customers that didn’t result in discipline could be kept up to 24 months.
On Jan. 12, 2016, Metrolinx’s manager of transit safety operations, Steve Weir, was told of an incident in Toronto’s Union Station involving Jessett and two other security officers. An investigation was launched and later that day Weir saw video footage of the incident.
In the video, Jessett struggled briefly with a 70-year-old woman. She walked away from him and he tried to grab her arm.
The two other officers — one male, one female — soon arrived and they all held the woman up against a wall with Jessett in the middle.
Jessett was trying to put handcuffs on the woman when he kneed her twice, though she was restrained against the wall by all three officers. Other members of the public were standing close by.
Weir was disturbed by what he saw and felt Jessett acted too violently considering the individual involved was an elderly woman.
He believed the right procedure would be to let the female officer try to speak to the woman if he couldn’t reason with her.
In addition, Weir learned that the woman had mental health issues and Metrolinx security officers were trained to de-escalate such situations. In Weir’s view, Jessett had escalated matters, even though two other officers had arrived to assist him.
Jessett was suspended with pay pending the results of an investigation. In an interview, Jessett said that his actions had been appropriate and he said he would handle things the same way again.
He also said he had delivered the two knee strikes to the woman because he had been getting “tired” of dealing with her.
The investigation was completed on Jan. 22 and the report mentioned that Jessett had a “lengthy history of complaints regarding aggressive behaviour and questionable use of force.”
Jessett had been notified of and disciplined for these complaints, but the discipline had expired under the collective agreement’s sunset clause.
Jessett had also been given additional training because of past incidents, but he continued to demonstrate “a pattern of aggression” that was contrary to Metrolinx’s standard of customer care, the report concluded.
The report outlined 16 customer complaints against Jessett — four in 2012, seven in 2013, and five in 2014 — seven of which involved the use of force.
In addition, Weir had written Jessett a letter of counsel in August 2014 regarding 21 incidents of negative customer concerns of aggression, rudeness, and for use of force over the previous two years.
On Feb. 25, 2016, Weir dismissed Jessett for cause, stemming from the manner in which Jessett had dealt with the 70-year-old woman and, as he later acknowledged, his “own knowledge” and “personal awareness” of Jessett.
The termination letter noted that Jessett had been “previously spoken to in relation to complaints of excessive use of force and provided additional training” as well as concerns about “aggressive, rude and unprofessional behaviour when dealing with customers.”
ATU grieved the dismissal, arguing that “stale discipline and information” that should have been wiped from Jessett’s record was used in the decision to terminate from Metrolinx.
Ontario Grievance Settlement Board vice-chair Gail Misra noted that Jessett had no instances of discipline following his letter of counsel in August 2014, so he had a clear disciplinary record at the time of the January 2016 incident.
Misra found that the “sunset provision is a substantive right that the union has bargained, and in the absence of any language in the agreement that would dilute that right, it must be given its plain and ordinary meaning.”
The reason this right would be negotiated was so such records couldn’t be used against workers. If such records were removed but still recalled, it would “completely nullify the purpose of the sunset clause,” said Misra.
While the January 2016 incident was serious in itself, Misra found that Jessett’s past issues played a role in the decision to terminate him, as they were referred to in the termination letter as well as the investigation report.
Weir also admitted that his knowledge of those incidents was part of his decision.
And, as stipulated by the collective agreement’s sunset clause, these issues should have been wiped from Jessett’s record.
“While I accept that Weir may also have had other considerations, including the significant nature of the January 2016 incident itself, it would be much too difficult a task to try to carve out Weir’s inappropriate consideration and to try to ascertain what appropriate considerations may have led to his decision to terminate Jessett’s employment,” said Misra.
Metrolinx was ordered to reinstate Jessett to his employment with full compensation for lost earnings, benefits and seniority.
For more information see:
• Ontario (Metrolinx – GO Transit) and ATU, Local 1587 (Jessett), Re, 2016 CarswellOnt 19970 (Ont. Grievance Settlement Bd.).
