GSB# 2004-1459
Union# G-68-04B0
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587 (Sharpe)
Union
- and -
The Crown in Right of Ontario (Greater Toronto Transit Authority - GO Transit)
Employer
BEFORE
Barry B. Fisher
Vice-Chair
FOR THE UNION
Ian Fellows Green & Chercover Barristers and Solicitors
FOR THE EMPLOYER
Glenn Christie Hicks Morley Hamilton Stewart Storie LLP Barristers and Solicitors
HEARING
January 28, October 18 & 21, 2005.
Decision
This is a discharge grievance. The grievor was terminated for writing a threatening letter to a female co-worker. The Union does not dispute that discipline is warranted, only that discharge is too harsh a penalty.
As an editorial note, I have referred to the female co-worker to whom the threatening note was sent as Ms. X as there is no reason to publicize her real name.
The relevant facts are as follows:
The grievor commenced employment with the TTC on October 21, 1988 and was transferred to GO Transit under Bill 125.
At the time of his discharge on July 9, 2004 he was employed as a bus driver. He was 51 years old.
In March of 2003, the grievor was disciplined for insubordination. The discipline letter read as follows:
On Thursday, March 6, 2003, you arrived at the Hamilton GO Centre at approximately 15:50 hrs. You stormed into the Supervisor’s office, slammed the door behind you, and ordered Supervisor N. off the phone. You proceeded to verbally abuse her and then threw money, run reports, changer, change purse, and I.D. badge on the desk beside her and told Supervisor N. you have had enough of this place and then left.
Your actions were intimidating, threatening, and insubordinate and will not be tolerated. Based upon your actions, and subsequent abandonment of the work place your employment is terminated, effective immediately.
The grievor filed a grievance over this discharge. The parties entered into Minutes of Settlement dated March 18, 2003 which provided as follows:
You will provide further medical documentation from your own physician confirming your medical condition and prognosis.
You will attend at a physician of GO Transits’ choice for a second opinion.
You will be reinstated as an employee and placed on sick leave effective March 17, 2003.
The period from March 7 to 16 will be considered a suspension without pay.
Note: This resulted in a suspension of 6 working days.
I was told by Union counsel in his opening that the nature of the medical condition was psychiatric and that the grievor had a history of depression for a long time. I was also advised in the opening that he had been in psychotherapy for a long time. I should note however that neither side chose to lead any medical evidence at all as to the grievor’s psychiatric condition at any of the relevant time, thus I had no medical evidence to consider in this case. In fact the Union stipulated in its opening that the grievor is not pleading that the psychiatric condition of the grievor explains or excuses his behavior, nor did it cause the incident that led to his termination, however the Union pleads that his medical condition is a relevant factor in assessing whether the penalty of termination was appropriate.
While off on sick leave the GO Transit doctor advised the Ministry of Transportation that in his opinion the grievor was not fit to drive at all. His license was then suspended. He was able to get back his “G” license in December 2003 but did not get back his Class “B” license until June 2004.
The grievor returned from sick leave to non bus driving duties about six months later. On May 28, 2004 he returned to his bus driver duties at the Hamilton terminal.
On Friday, July 2, 2004, after only having worked 25 driver shifts since his suspension, the grievor committed the act which led to his termination. He started his shift at the Barton Street garage at around mid-afternoon. When he went into the bus to which he was assigned, he found that there was garbage inside the bus that the previous driver, Ms. X, had not cleaned up. He proceeded to remove the garbage which he said amounted to several armfuls. He then drove the now litter free bus to the Hamilton railway station, which generally takes about 20 minutes in traffic. He proceeded to the drivers’ room, took some paper from the table, borrowed a pen from a co-worker and wrote the following note.
Ms. X
If you EVER leave me a bus in the same state as today’s (FRI.) again, I’ll see you live to regret it.
A friendly warning from a fellow union-member.
Ken Sharpe
Another driver saw the grievor write the note. That driver said to the grievor “You could get yourself into trouble writing that note.” The grievor then put the letter in an envelope, put the name of Ms. X on the envelope and posted in up on the drivers’ board, which is in plain view. During the course of that day he returned to the Hamilton terminal several times. He made no attempt to remove the note. Furthermore he was off all weekend and at no time did he come to the Hamilton terminal to remove the note before Ms. X saw it. On cross-exanimation when he was asked whether he felt it was wrong to write this letter at the time he wrote it, he said that he felt is was a risky thing to do on his part.
- On Monday July 5, 2004 Ms. X arrived at the Hamilton terminal and went to the drivers’ room for a layover at about 7:45 am. Another driver told her that there was an envelope on the notice board for her. She took the envelope and read the letter inside. Upon reading the letter she was “very taken aback” and “in a state of disbelief” and “physically shaken.” Two other drivers who were in the room at the same time also read the letter. She had a physical reaction to the letter in that her body broke out in hives. She expressed fear of the grievor. She spoke to Union Stewart about this matter and he quite properly told her to immediately report it to management, which she did that same day. The supervisor who first heard the story from Ms. X testified that Ms. X was very upset, shaking, pale and crying. She testified that the effects of this letter have lasted to the present.
For the next few days management arranged for her to be escorted to her bus and her car. She also reported the incident to the police but asked that they not contact the grievor. She testified that she felt especially terrified about the note because of the fact that it came from the grievor, who she knew had been involved in “previous incidents.” She testified that not having to worry about encountering the grievor at work has made it much better but that she is still not over the incident. Although she generally works out the Hamilton terminal, she often works extra days throughout the system.
- On July 6, 2004, Supervisor Rae Anne Nestorvich called the grievor on the phone and said that she wanted to see him. The grievor’s response was to chuckle and say “I guess I know what this is about.”
When the grievor arrived at the meeting the Union Stewart, Danny Harris and Supervisor George Subrowski was also present. As soon as the grievor entered the meeting and saw that the Supervisor had the letter in her hands, the grievor said in a loud voice “I fucking well knew it. I knew she would fucking well turn this around and make it my fault instead of dealing with the dirty bus.” He also said “You don’t know what I meant by the threat, it could have been that I could leave a dirty bus for Ms. X.” The grievor also expressed his view that leaving dirty buses was a form of harassment. He was suspended without pay at the end of the meeting.
On July 9, 2004 the grievor and his Union Steward attended a meeting with a number of senior managers, including Mr. Finnerty, Manager Bus Operations. The grievor kept on talking about dirty buses and management tried to talk about sending threatening letters. Later that day the grievor was terminated.
On the morning of January 28, 2005 just before the first day of this hearing was to commence the grievor, through Union counsel delivered an “apology” letter to Ms. X, which read as follows:
“Dear Ms. X and family January 27, 2005
I am writing to you to express my sincere, heartfelt regret for the angst that I caused you by leaving such a note for you in our workplace. My purpose in doing so was to create an “incident” which would force the Union and Management into having discussions which would ultimately lead to putting an end to a longstanding working condition which I believed (and still do) is injurious to interpersonal relationships amongst employees, and is detrimental to our image as professionals in the eyes of the traveling public, and the quality of service with which we provide them.
However, the ends do not always justify the means, and even though there was never any intent on my part to do you personal harm, either to your person or in any other way, the words I chose in pursuit of this goal were clearly inappropriate.
I also understand that there has probably been a lot of gossip about me in the workplace about events in my personal life, gossip which if taken to be true would have heightened your concern.
In my defence I can only say that my judgement of what would have been an appropriate way to proceed may have been impaired by the enormous strain I was undergoing at having been through a long series of nerve-wracking tests for cancer, and having been positively diagnosed with prostate cancer, only to be told that the earliest available date for surgery to get it out of me was six months away.
Why is it that it has taken so long for you to received this apology? I and my family have been through a two year nightmare as a result of GO Transit’s actions, and I have been wrongly placing some of the responsibility for our suffering on your having gone to Management with my note instead of to the Union, as I had hoped you would do. I also know that there will be a strong temptation for you to believe that this apology is just a ploy to be used in my upcoming Labour Board arbitration. It is not.
In the end, what I did to you was just plain wrong, and not only do I bear you no ill will, Ms. X, I beg your forgiveness.
Once again, my sincerest apologies to you and your family.
Yours sincerely,
Ken Sharpe”
The grievor testified extensively about why he sent the threatening letter. He first told of an incident that occurred about four years before when he first complained to management about being left with dirty buses. The supervisor to whom he complained told the other drivers that the grievor had complained about being left with dirty buses and from that point on he felt that other drivers would intentionally leave buses for him in a very messy state. The other drivers gave him the cold shoulder and treated him like a “squealer”. He did not feel that there was any point approaching the Union as he had heard that the Union Steward was the worst offender of them all.
On another occasion, some years ago, he was told by another driver that a third driver had intentionally dirtied the bus before giving it over to the grievor.
When the grievor was off on sick leave following the six-day suspension the GO Transit doctor filed a report with the Ministry of Transportation which caused his driving license to be revoked. It took the grievor many months to get back his license. From this incident he felt and continues to feel a deep sense of injustice because of the actions of his employer.
The grievor testified that the reason he wrote the threatening letter to Ms. X was because he thought that Ms. X would take it to the Union who in turn would sit down with the Employer and finally deal with the issue as to whose responsibility it was to clean up the interior of a bus after the shift change. He indicated that he did not complain to management directly because of what happened to him years ago when he did exactly that. He said that he did not write the letter just for himself, but also on behalf of other people. He testified that he wanted to create evidence of infighting so that the Union would take this matter seriously and do something about this issue. He signed the letter with his own name so that everybody, not just Ms. X, would know that he was the one complaining about dirty buses. He wanted to bring attention to what he believed was the serious problem of dirty buses. He indicated that he never had any intention to cause harm to Ms. X and regrets that she felt intimidated by the letter. He said that he would have delivered the apology letter earlier had he known how upset Ms. X had been, which he only learned when she testified on the first day of the hearing. However this is hard to understand since he delivered the apology letter before Ms. X testified.
When he was asked what he had learnt from this episode he stated that he had learnt that these matters should have been handled through proper channels. When asked to explain this he said that he should have contacted the Union Stewart and if necessary the Union lawyer. In other words, if he felt that the collective agreement was not being complied with, in that he should not have to clean up someone else’s bus, then he go through the grievance procedure, not send threatening letters. However, on cross examination when he was asked whether he had learnt anything after the six day suspension, he replied that he had written the letter to Ms. X out of frustration because no one was willing do anything about the dirty bus issue. He admitted that in the four years between the initial complaint to his supervisor about dirty buses and his letter to Ms. X, he never raised the issue of dirty buses with anyone.
With respect to the impact that this termination has had on the grievor, he has not been able to get steady driving work because his driver’s abstract shows a period of suspension. In addition he has been unable to use GO Transit as a reference. He has had sporadic work in factories and a period of low wage employment at a local Tim Horton’s, which he quit after having a series of conflicts with his boss. His wife has used up her RRSP savings and they are both emotionally distraught at the thought of bankruptcy and of losing their house.
In terms of looking for other work he is qualified to drive certain trucks but not tractor-trailers. He has applied to the TTC and registered with certain trucking agents and headhunters that find driving jobs. He did not apply to any other transit authorities, even the ones in his immediate area.
Decision:
The only issue is whether the penalty of termination was excessive.
The aggravating factors are as follows:
He had been previously disciplined by way of a six-day suspension for similar behavior of a threatening manner. Although there was a calendar period of 16 months between the incident, in terms of days in which he actually performed driving duties, the period was only 25 shifts, a very short period of time.
The act of writing and delivering the letter was completely premeditated and not spontaneous at all. He was warned by his co-worker to not send the letter, he himself knew that it could get him into trouble and he had ample opportunity to take the letter off the drivers’ board after he had posted it but before Ms. X would receive it.
Although he may have not intended to actually physically harm Ms. X. the clear purpose of the letter was to intimidate Ms. X into worrying about possible future harm that could come her way. The grievor thought that Ms. X would take her concerns to the Union, however she quite properly took it to both her Union and to Management. Intentionally creating a sense of fear in another is as serious as actually causing the other person physical harm. No one in this day and age should have to “look over their shoulder” while at work because they fear an attack from a co-worker.
When first approached about this problem he did not apologize to Ms. X, in fact all he seemed to care about at that time was the issue of dirty buses. He did not seem to “get it” that the issue was not dirty buses but his threatening behavior. His later apology is at best too late and half-hearted. Most of the letter deals with his reasons for sending the threatening letter, be it the issue of dirty buses, his health, and injustice at the hands of the employer. Most remarkably he remarks in the first paragraph that the issue of dirty buses is still an issue that he believes “is injurious to interpersonal relationships amongst employees, and is detrimental to our image as professionals in the eyes of the traveling public, and the quality of the service that we provide them.” In other words, even after being terminated and on the eve of the arbitration itself, he still is virtually obsessed with this issue of dirty buses and apparently still believes this matter needs to be addressed. In other words he seems to still think that his behavior in sending the letter to Ms. X is somehow justified because it was for a greater good, i.e. the fight against dirty buses. This creates a real concern that if he were to be returned to the workplace that he would properly handle the situation the next time things do not go his way or he is left with a dirty bus.
Mitigating Factors:
He has a long service, almost 16 years.
The loss of his job has led to dramatic negative changes to his financial and family life.
The temporary suspension of his driver’s license on his driver’s abstract has made it difficult for him to find comparable driving employment, which is his best chance of earning a living comparable to what he has lost at GO Transit.
He has expressed some remorse for his actions.
The Union has indicated that they believe that this is an appropriate case for a last chance agreement, which would contain the following conditions:
Before returning to duties he would be required to undergo a psychiatric assessment to determine his ability to deal with anger and conflict. He would be required to participate in any treatment prescribed by that assessment.
Upon his return to work, he would not be assigned to the same area as Ms. X for some period of time.
No back pay would be awarded.
The Union’s approach has an initial appeal as arbitrators tend to give last chance agreements a try even where the behavior is threatening, where there is a medical basis for believing that the grievor will not repeat the behavior. The following cases illustrate this trend.
In OSF Inc. and USWA Local 5338 ( Keefe) 2000 CanLII 50204 (ON LA), 89 L.A.C. (4th) 52, Arbitrator Kirkwood dealt with a grievor with a bad record (two suspensions in the last 12 months , both for abusive or violent behavior) who verbally threatened the Plant Superintendent. The grievor had only 2.5 years service and was found to have acted in the heat of the moment. The arbitrator also found it important that the grievor, who was already in an anger control program as a result of the previous incident, recognized that he still had anger control issues and was prepared to continue in that program. The Arbitrator reinstated him with no back pay on the condition that he continue in the anger management program, that he must control his temper at all times and that any “unwarranted outburst will not be tolerated.”
In Ajax Pickering Transit Authority and CUPE Local 129-01(Garcia) 2003 CanLII 89645 (ON LA), 123 L.A.C. (4th) 51, Arbitrator Craven was dealing with a 11 year employee who, after years of arguing both with his union and the employer about his status as a casual employee, said in a phone call to management employee “What do I have to do to be heard around here, come in and shoot someone?” He had a clean discipline record. No medical evidence was led however the arbitrator reinstated him with no back pay conditional upon the grievor first undergoing a psychological assessment of the potential risk of reinstatement and upon receiving a medical clearance from that medical specialist. This request came from the employer in their submissions.
In Timberjack Inc. v Glass, Molders, Pottery, Plastics and Allied Workers Int. Union Local 446 ( Swan )[2000] O.L.A.A. 829, Arbitrator Verity dealt with a 27.5 year employee with a clean record who verbally threatened to bring a gun into the workplace and do physical harm to a supervisor and other employees. He was reinstated after a nine month suspension.
In Regional Municipality of Ottawa-Carleton and CUPE Local 503 1994 CanLII 18692 (ON LA), 44 L.A.C. (4th) 95, Arbitrator Stewart dealt with a 21 year employee with a clean record who uttered verbal threats of physical violence involving the use of a gun against employee to a different employee. In this case the Union led extensive medical evidence from the grievor’s psychiatrist who testified that he had a low risk of repeating the behavior. The grievor was fully participating in his treatment and was on a waiting list for a course in anger management. The grievor was reinstated with no back pay.
In Toronto Western Hospital and CUPE Local 1989 CanLII 9397 (ON LA), 1744 6 L.A.C. (4th) 150, Arbitrator Mitchnick had a situation where a five-year employee was first given a five-day suspension for a verbal threat that he made to his supervisor in an emotional outburst. Then a few days later, while he was being handed the suspension letter he again verbally threatened another supervisor. He was then terminated. He gave a written apology a few days later. He had no formal discipline record other than the two incidents. His discharge was substituted with a four-month suspension. It should be noted that this case was decided in 1989, well before the well known incidents of workplace violence that have occurred in recent years, like the murders at OC Transpo.
In OSF Inc v USWA Local 5338, 63 C.L.A.S. 290, Arbitrator Murray had a case involving a verbal outburst threatening another employee with gun violence. He upheld the discharge even though there was technically a clean record. The Arbitrator found on the evidence that there was a pattern of similar misconduct and that the grievor continued to have a grudge against the co-worker which would affect his ability to return to the workplace.
In Metropolitan Hotel and HERE Local 75 (Bellan) 2003 CanLII 89491 (ON LA), 124 L.A.C. (4th) 1, Arbitrator Springate dealt with a 8 year employee with a clean record who made threats to the Director of Human Resources and her family while at an OLRB meeting and in front of many witnesses, including lawyers for both the employer and the union. Prior to discharge the employer arranged for a psychiatric assessment of the grievor which the grievor attended. The psychiatrist found that did not believe that the grievor would be a potential danger to the safety of the guests or other employees. At a subsequent meeting, the grievor denied that he had made the threats, and said that his comments were misunderstood due to English being his second language. Arbitrator Springate, in upholding the discharge made the following comments at pages 26 to 28,
“The parties referred to a number of awards where grievors were reinstated (or not discharged) despite making threats to a supervisor or a fellow employee. Those cases addressed considerations such as whether there was actual physical contact, whether a threat was likely to be carried out, whether the person being threatened took it seriously, any expressions of remorse and also whether the threat was due to an employee’s mental illness. All of these considerations continue to remain relevant.
Unfortunately, another consideration is the impact of increased violence in society generally and particularly in workplaces. With it has come greater concern for both the possibility of actual violence following a threat as well as the impact of a threat on the person being threatened. There is also a heightened recognition of an employer’s obligation to take steps to protect its staff from potential violence and from threats of violence. One recent case, not referred to by either of the parties, that articulated some of these concerns was Re McCain Foods (Canada) and U.F.C.W., Loc. 114P3 (Ellis) (2002), 2002 CanLII 78959 (ON LA), 107 L.A.C. (4th) 193 (C.G. Simmons). In that case an employee indicated to two other employees that if anything happened to him and his job he would shoot a particular supervisor. Arbitrator Simmons upheld the employee’s discharge. In doing so he noted at pp. 209-10 that, “When Galco was decided in 1974 the world had not witnessed the Lepine shootings in Montreal, nor the employee shootings at the Ottawa Bus Terminal nor, indeed, had shootings in schools across North America become as frequent as they have during the past decade.”
As already noted, the grievor’s underlying concerns related to comments made to him by Mr. Aliheidari some 11 months before. Ms Carney spent considerable time seeking to address the grievor’s concerns and to resolve the dispute between him and Mr. Aliheidari. The grievor was dissatisfied with the outcome of her efforts. One way he demonstrated this was by cutting his own wrist after receiving a letter from Ms. Carney that disappointed him. He also sought to address his concerns by way of a grievance and a related OLRB complaint against the union.
Ms. Carney attended at the OLRB in her capacity as the employer’s Director of Human Resources. As a result merely of her attendance, and without any provocation, the grievor threatened to get her and her family. He did so in a manner that caused Ms. Carney to fear for the safety of herself and her children. A subsequent psychiatric assessment requested by the employer determined that the grievor had not been suffering from any diagnosable psychiatric illness.
The grievor’s misconduct was compounded by the fact he did not acknowledge that he had done anything wrong. This does not instil confidence that he would not repeat his conduct should he be reinstated and again became disappointed by work-related events.
The above considerations lead me to conclude that the employer had just case to discharge the grievor.”
In this case all I know about the grievor’s psychiatric background is that in the Union’s opening I was told that he had a history of depression for a long time. I was also advised in the opening that he had been in psychotherapy for a long time. However no medical evidence as to his present mental health was led therefore I have no way of knowing whether a further psychiatric evaluation would do any good. It was certainly open for the Union to lead evidence from his treating psychiatrist or physician as to the grievor’s likelihood of future threatening behavior, however no such evidence was led. I am therefore unable to, as requested by the Union, take into account his apparent medical background in assessing whether he would make a good candidate for reinstatement. Nor is it appropriate that on my own volition I order such an evaluation where one was not requested by the Employer (as in the Metropolitan Hotel case and the Ajax Pickering case) nor where the Union chose not to lead evidence on this issue (unlike in Ottawa Carleton where the Union led such evidence). In an adversarial system of arbitration, the parties, not the arbitrator, decides what evidence will be led at the hearing and the arbitrator makes his decision based solely on that evidence.
For this reason the Union’s proposal for a last chance agreement is not appropriate.
I concur with Arbitrator Springate’s comments on how we should now view violence and threats of violence in the workplace.
In all the cases quoted above the threats were verbal and in most cases were in the nature of intemperate outbursts. In this case, the grievor’s threat was in writing, therefore intended by the grievor to have a more lasting affect than mere words that disappear after they are spoken.
This was premeditated. He wrote it out and posted the envelope on the board for days. He had many opportunities to change his mind and go back and pull it off the wall. We have all said stupid and hurtful things to other people, and then immediately wish we could take back our words. The grievor could have taken back his threatening words anytime between Friday and Monday morning, but he chose not to.
His apology was not until the morning of the hearing. That means Ms. X lived with his threat of violence for over six months. Even then his apology was mostly his rationale for his behavior, not a true understanding of the pain and fear that he has put Ms. X through.
By his own words the grievor admits he used Ms. X to achieve an ulterior purpose, that is to make the Union take his dirty bus issue seriously and deal with this issue with management. In essence he was prepared to terrify a completely innocent co-worker in order to try to get his dirty bus issue before the employer. This issue, which the grievor admitted he had done nothing about for over four years, over which he had never even tried to file a grievance over, was so important to him that he was prepared to do a “risky” thing by sending that letter without the slightest regard for the feelings of the recipient.
In most of the cases referred to above where reinstatement was allowed, the grievor had a clean record. This grievor did not. A mere 16 months before (during which he was off on sick leave for a considerable period of time) he had committed a similar, but less serious offence against his supervisor. Progressive discipline was tried but did not succeed.
For all of the reasons above, I find that termination was not an excessive response to the grievor’s misconduct.
The grievance is therefore dismissed.
Dated at Toronto this 14th day of December, 2005.