Third time’s no charm for menacing employee

Transit collector denied threatening customer in altercation but had been terminated twice before for similar behaviour

Employee blows last chance

The Toronto Transit Commission (TTC) ran out of patience with an employee after it received a complaint accusing him of insulting the customer with a racial slur and vulgar language and then threatening to beat him up when the customer reacted.

The employee denied any memory of such an incident and said there wasn’t enough proof to warrant dismissal. However, the TTC and the arbitration board that heard the employee’s grievance agreed the complaint was credible and the employee’s claim he didn’t remember anything was not.

The employee had been terminated twice before for other incidents involving threatening behaviour, which made this outside normal disciplinary proceedings and allowed the TTC to consider disciplinary history outside of the past two years, which included the first termination.

This case is an example of circumstances where the nature of past discipline plays a role in how misconduct is considered, as well as how the violation working conditions that have been established as a result of previous discipline can be used to justify dismissal.

A Toronto transit employee’s firing for threatening a customer has been upheld by the Ontario Arbitration Board after the employee denied the accusation and contested his dismissal.

After working for five years in other departments at the Toronto Transit Commission (TTC), Raymond Norman was placed on a permanent medical placement in the collectors division because of a chronic foot problem in July 2003. Though the transfer was a medical accommodation, he was required to sign a conditions of employment agreement stipulating specific standards of behaviour because of a 2003 dismissal and reinstatement following the harassment of a co-worker. The agreement stated that he would maintain “co-operative and professional relations with the general public” and he would contact transit control for advice in the event of an incident. It also said “failure to follow these standards could result in “disciplinary action up to and including dismissal.”

Norman was also subject to conditions of reinstatement after he was dismissed in 1999 for threatening and insulting a supervisor and reinstated in June 2000, which stipulated he must “maintain a positive and professional attitude towards patrons and employees.”

These conditions also said if he didn’t follow them, further discipline up to dismissal could result.

Altercation with customer at collection booth

On Jan. 14, 2004, Norman was working as a fare collector at a subway station, sitting in an enclosed booth with a speaker and microphone for communication with the customers. Early in the rush hour period, he was counting cash as collectors are instructed to do when there is an excessive amount and some needs to be dropped into a drop vault. Collectors can call a supervisor to handle customers if cash needs to be counted during a busy time, but otherwise they are supposed to stop counting to serve customers as needed. Norman didn’t call a supervisor when he was counting cash on Jan. 14.

At about 4:20 p.m., a customer came to the booth looking to purchase a fare. He needed change from a $5 bill so he came to the window. When he saw Norman counting cash and not looking, the customer knocked on the glass to get his attention. Norman waved his arms at the customer, as if telling him to wait and continued counting. The customer waited and when a line formed behind him, knocked on the glass again. The customer said Norman became annoyed, put down the money and said in a loud voice, “What do you want, chink?”

The customer, who was of an Asian background, was shocked and asked for Norman’s name and badge number. When Norman didn’t respond, the customer asked him to repeat what he had said. According to the customer, Norman called him another vulgar name and asked him what he wanted. The customer pushed the $5 bill through the slot, Norman made change and called the customer another vulgar name. The customer felt “threatened, embarrassed and victimized” by Norman’s comments and replied by giving Norman “the finger” and calling him a name. He said Norman then turned to him and loudly told him he got off work in a half hour and he’d beat him up if he stuck around. The customer said he was so frightened he ran down to the subway platform and got on a train as quickly as he could.

The customer was concerned for his safety and called police that night and later filed a complaint with the TTC. The next day, Norman was asked to report to the division head. He was also reassigned to duties that didn’t deal with the public, as was TTC policy when there was an allegation of workplace violence or harassment.

TTC investigated complaint

Norman asked why he was reassigned and was told he’d find out at a disciplinary review on Jan. 23. Norman was surprised because he was unaware of any complaint. At the interview, he said he didn’t remember an altercation with a customer and said he would never utter a racial slur or threat to a customer. He also said his shift that day wasn’t over for another one-and-a-half hours from the time of the alleged altercation, so he wouldn’t have said he would be done in a half hour.

After the interview, the TTC determined the incident likely took place as the customer outlined in his complaint. The complaint was detailed and credible, while Norman, rather than offering his own version of the incident, denied having any memory of an incident at all. He had also started work early that day, so he could have finished work early.

Zero tolerance for violence and harassment

The TTC had a zero tolerance policy for violence and harassment and since it provided a public service and received public funding, it held its employees to a high standard of conduct, particularly for station collectors who worked with little supervision in positions of trust. Norman was dismissed for uttering a racial slur and making a threat to a customer, failing to report the situation to transit control as required and counting money during the afternoon rush period.

Norman contested his dismissal through the union, claiming the TTC didn’t have sufficient evidence supporting the customer’s complaint and any misconduct that did take place, such as counting money and closing a booth during rush hour, was minor.

The board found it unlikely Norman had no recollection of the incident. The detail in the customer’s complaint and the extent of his emotions, some of which he described as shocked, embarrassed, upset, victimized and threatened, made it most likely something happened that was significant enough that it would stand out in Norman’s memory from other customers that day.

The board did find it was possible the customer could have misheard the racial slur through the glass and microphone, as Norman could have said “change” rather than “chink.” However, it found the rest of his conduct the customer described could not have been misinterpreted.

“Although (Norman) had numerous interactions with customers, I do not believe the interaction with the complainant was either innocuous or ordinary, such that the (nine-day) delay in apprising (him) of the allegations affected his recall of the incident and, therefore, prejudiced his ability to recount his story,” the board said. “The interaction was anything but ordinary and ought to have stood out in (Norman’s) mind.”

Employee violated reinstatement conditions

Regardless of whether Norman used a racial slur or not, the board found his interaction with the customer wasn’t professional or respectful, which violated both sets of reinstatement conditions. He also had a “substantial” disciplinary record, having been terminated and reinstated twice, with his second reinstatement only six weeks before the incident at the collector’s booth. Both previous terminations were for misconduct involving harassment and intimidation as well. Though the collective agreement prohibited the consideration of past discipline beyond two years in “normal circumstances,” the board found this wasn’t a normal situation, given the importance of customer service to the TTC and the nature and severity of Norman’s disciplinary record. For abnormal circumstances, the collective agreement allowed consideration for the previous five years, which included Norman’s first termination.

The board upheld Norman’s termination and dismissed his grievance.

“When the record, as well as the conditions under which (Norman) was accommodated as a station collector, is viewed in relation to the misconduct at issue, and having regard to (his) modest seniority, I am constrained to conclude that discharge was warranted in the circumstances,” the board said.

For more information see:

Toronto Transit Commission v. A.T.U., Local 113, 2008 CarswellOnt 6646 (Ont. Arb. Bd.).

Latest stories