Employee found not guilty after trial
The day after a Toronto Transit Commission (TTC) worker attended sensitivity training, he reportedly made death threats against three supervisors.
Mark Davis had worked for the TTC since 1989. He was working inside a collection booth at Midland station on Aug. 6, 2014, when Dawn Bethune, collector, relieved him so he could take a lunch break. Davis left the booth to have lunch, then came back early.
He struck up a conversation with Bethune regarding the written material he received during TTC-mandated sensitivity training 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 requirement 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 opportunity to refute the statements and categorize them as jokes. But Davis continued along the same line.
Eventually, Bethune left to relieve another collector.
But Bethune continued to ponder what Davis said and contacted a union steward and her husband (another steward) for advice on what she should do. She ultimately 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 enforcement officer interviewed Bethune and the Toronto police were contacted. On Aug. 9, Davis was suspended 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 acquitted 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 directly with the three supervisors, the reported threats should be considered hypothetical, not premeditated, it said.
The union argued Davis’ long service (26 years), lack of experience 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 forensic psychiatrist Jonathan Rootenberg, who spent three hours with Davis, indicated his potential for violence was rated at four out of 20 on a psychopathy checklist. Anything more than 13 would have required more evaluation, according to Rootenberg.
Arbitrator Lorne Slotnick dismissed the grievance, largely on the basis of the credibility of the only two witnesses.
“(Bethune’s) actions conformed to what would be expected 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 ultimately 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 commit violence was deemed to be low, it would adversely impact other TTC workers, should he be returned to his position, according 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.
