An arbitrator has upheld the dismissal of a Toronto transit worker who made comments to a co-worker about committing violent acts.
Mark Davis, 54, was a fare collector for the Toronto Transit Commission (TTC). He was hired in 1989. In early 2014, Davis was suspended for two days after gestured with his middle finger at a customer. The TTC also required Davis to attend sensitivity training dealing with difficult customers, the TTC’s workplace violence policy, the Ontario Occupational Health and Safety Act (OHSA), and the need for appropriate and professional conduct at work.
The day after the training, Davis was chatting with a co-worker at a ticket booth and said, “If anything ever happened, like losing my job, I’d have no problem coming in here and shooting them.” Davis also said he would kill only managers, not employees, and mentioned three managers by name. “I’d die for that cause,” he said.
The co-worker later told her union steward and a manager about the comments, and filled out an incident report. She also spoke to a transit enforcement officer and police officers after the TTC called them and, a couple of weeks later, filled out a supplementary report.
On Aug. 7, the day after the conversation, the TTC relieved Davis of duty with pay while it investigated. When he was told of the allegations, Davis said he was surprised and he was probably misunderstood because he joked a lot, emphasizing he had “no animosity towards anyone.”
But the TTC felt the co-worker’s account was credible, since it was rare for a union member to make allegations against another union member, and she had no reason to make up the story.
The police charged Davis criminally with three counts of uttering death threats. He was suspended without pay on Sept. 25 and met with a senior manager to get his side of the story. However, because of the ongoing criminal case against him, Davis said nothing on the advice of his lawyer.
The TTC terminated Davis’ employment for engaging in workplace violence, as defined by the OHSA. And the union — Amalgamated Transit Union Local 113 (ATU) — grieved the dismissal.
But arbitrator Lorne Slotnick agreed with the TTC’s assessment of the co-worker’s credibility. There was no personal animosity between her and Davis, and she got advice from her union steward before reporting the comments, said Slotnick.
Davis’ credibility also suffered from his attempts to explain why his co-worker would lie, said Slotnick, and Davis had good reason to lie to try to save his job.
Though Davis had more than 25 years of service with the TTC, Slotnick determined dismissal was appropriate. Davis had previous discipline related to similar behaviour and the comments were particularly egregious since they came a day after Davis had attended sensitivity training. In addition, Slotnick put significant weight on the fact Davis denied everything and tried to shift the blame onto his co-worker.
“Had Mr. Davis acknowledged his actions and apologized for them, he would have had a far stronger case for reinstatement,” said Slotnick.
“But with his failure to do so, other employees have no assurance that if he returns, their workplace will be free of the kind of threats that those employees should not have to endure.”
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