Bad behaviour without provocation banned: arbitrator
An Ontario worker who threw metal bolts at a colleague breached his last-chance agreement and deserved to be dismissed, an arbitrator has ruled.
The 38-year-old worker was a vehicle repairperson for the Toronto Transit Commission (TTC). He was originally hired in 2008 and his job duties involved the overhaul of subway car undercarriages.
The worker had 11 instances of discipline over a four-year period, including verbal warnings, written warnings, and multiple suspensions, for misconduct ranging from swearing and yelling at colleagues to spitting on his foreperson’s personal vehicle.
On July 5, 2013, the worker visited the TTC’s occupational health department about a sick-pay issue. Employees in the department complained that he was “rude, aggressive and profane” and the TTC relieved him of duty, but reinstated him subject to a last-chance agreement. The agreement stated that any future involvement in inappropriate conduct, verbal harassment, or physical assault in the workplace would result in his dismissal.
On Feb. 12, 2015, the worker was overhauling a subway car’s undercarriage with a coworker. The coworker asked the worker which bolts were new and the worker turned away, appearing to be frustrated. The coworker told him to “Relax and be happy, smile, just be happy” and the worker responded by throwing two of the bolts at him. The bolts were about four inches long and one inch thick, and one of them hit the inside of the coworker’s knee, leaving a small red mark.
The coworker reported the incident as he didn’t feel safe working with the employee. He stated that the worker threw the bolts overhand from four or five feet away — not as hard as he could but “a hard toss.” The worker called him later and apologized, saying he didn’t intend to hurt him.
In an interview with management, the worker admitted to throwing the bolts but denied aiming for or hitting his coworker. He also said he was feeling terrible that day after not getting much sleep. The next day, the worker provided a written statement saying that he tossed the bolts on top of a piece of machinery because he had to go to the bathroom but his coworker stormed off. He said “there was no intent to throw it at him or in his direction.”
The TTC determined that the worker breached his last-chance agreement and terminated his employment. The union grieved, arguing that the incident wasn’t serious enough to trigger the last-chance agreement. It also pointed out that his phone call apology showed he was remorseful.
The arbitrator found that under the last-chance agreement, the worker agreed to not become involved in any incidents of inappropriate misconduct or engage in verbal harassment or physical assault. In addition, the TTC’s workplace violence policy and the Ontario Occupational Health and Safety Act both defined workplace violence as “the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker.”
The arbitrator also found that the coworker was a credible witness who was consistent in his report of the incident — he showed the red mark on his knee to management — and had no reason to lie about it. In contrast, the worker changed his story, first admitting to throwing and hitting the worker and later saying he didn’t do either.
The arbitrator determined that the worker threw the bolts at this coworker without provocation — the comment about smiling could be considered a “low-level form of teasing,” but the worker’s reaction was “wildly disproportionate.” It was also a “purposeful assault” that could have caused injury, the arbitrator said.
“At worst, it was workplace violence; at best, it was inappropriate, disrespectful conduct,” said the arbitrator in upholding the dismissal. “Either way, it was a violation of the last-chance agreement.”
