GSB#2006-2031, 2006-2032

Union# G-85-06-BO, G-88-06-BO

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Clements)

Union

• and -

The Crown in Right of Ontario (Greater Toronto Transit Authority - GO Transit)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Simon Blackstone Green & Chercover Counsel

FOR THE EMPLOYER

Sven Poysa Osler, Hoskin & Harcourt LLP Associate

HEARING

April 11, October 2, 3, 16, November 27, 2007 and January 14, 2008.

Decision

1In October of 2006, the Employer suspended and subsequently discharged Ms. Lee-Ann Clements, a bus driver. Ms. Clements filed two grievances, one challenging the suspension and one contesting her discharge. In a bottom line decision, I determined that the Employer did not have just cause to discharge Ms. Clements and I directed the Employer to reinstate her, leaving open what penalty, if any, would be substituted for the discharge. In a subsequent decision, I determined that Ms. Clements did not engage in culpable conduct on September 29, 2006, as alleged by the Employer, and I directed the Employer to fully compensate Ms. Clements for her losses, with interest, subject to any mitigation. The Employer has complied with these directions. This decision sets out the reasons for my conclusion that Ms. Clements did not engage in any culpable conduct on September 29, 2006.

2The Employer discharged Ms. Clements because of its view that she made an offensive comment to passengers while operating a bus on September 29, 2006. Without providing the complete context for the event, I simply note at this stage that on a trip from Brampton to York Mills, a male passenger said “No speak-a English” and Ms. Clements responded by saying “You guys speak English, don’t you!” to passengers in her immediate vicinity. Ms. Clements has never denied that she used these words. The Employer contends that this statement constitutes an offensive comment and a culminating incident that justified the termination of her employment. The Union took the position that the comment made by Ms. Clements was not offensive in the circumstances. In the alternative, Union claimed that the penalty of discharge was too harsh, even if the conduct of Ms. Clements was inappropriate.

3The Employer called six witnesses. Mr. A. Lumb is the passenger who forwarded a written complaint about Ms. Clements. The other five witnesses were G. Armitage, Head of Driver and Safety Training, Mr. J. Womersley, Manager, Bus Operations-West Region, Ms. M. MacRae, Employee Relations Consultant, Mr. G. Duyn, who signed the discharge letter and at the time was the Acting Manager, Bus Operations-West Region, and Mr. J. Chilton, Supervisor, Bus Operations-West Region. In addition to Ms. Clements, the Union called as a witness Ms. P. Keating, a passenger. There was very little dispute over the facts.

4The year 2006 was eventful for Ms. Clements, given that she also had been discharged by the Employer earlier in the year. In a discharge letter dated March 6, 2006, Mr. Womersly made reference to her poor driving habits and her confrontational attitude to passengers. In his opening statement, Employer counsel noted that the conduct that led to her discharge in March of 2006 included her use of racial slurs to a black passenger. Ms. Clements grieved her discharge and the parties resolved the matter by entering into an agreement entitled “Conditions of Continued Employment” (“the Conditions”). The Conditions provided for her reinstatement and a 10-day suspension. The Conditions also contained the following terms and conditions for her continuing employment:

6. The employee must dramatically improve her interaction skills with GO Customers, fellow employees and members of the public. Her success will be judged through condition #7 below.

7. The employee must not receive any Customer Complaints, which are

assessed as being ‘at fault’ on her part.

8. The employee must attend, and successfully complete, any GO provided

courses related to improving her driving and customer service skills for

which she is scheduled.

9. The Terms and Conditions of this Agreement will remain in effect until

March 8, 2008.

10. The Employee agrees that she has read the Agreement in full and

understands the terms and conditions. The Employee further agrees

that she has been provided ample opportunity to review this agreement

and seek advice from her representative(s).

The Employee understands that failure to meet any of the preceding conditions may result in termination of her employment.

5There was some debate between counsel about the significance of the Conditions and whether the document constitutes a last chance agreement. Given my conclusion that Ms. Clements did not engage in culpable conduct on September 29, 2006, it is, strictly speaking, unnecessary to address these issues. I simply note that the Conditions merely provide that a failure of Ms. Clements to meet any of the conditions may result in her termination. It does not contain a provision which restricts an arbitrator from substituting a lesser penalty if it was found that she did breach one of the conditions. The Conditions does not have some elements that are in a standard last chance agreement. However, the 10-day suspension and the conditions of employment would be given serious consideration and weight when assessing the appropriate penalty if Ms. Clements had been disciplined for any subsequent breach of the Conditions.

6What is clear from the settlement of her discharge in March of 2006 is that the conduct of Ms. Clements would be assessed based on the Conditions for the following two years. The most significant features of the Conditions are that Ms. Clements undertook to improve her interaction with customers and agreed that she must not receive any customer complaints for which she is assessed at fault or responsible. This leads then to the events which resulted in her discharge in October of 2006.

7Ms. Clements, Ms. Keating and Mr. Lumb testified about the relevant incidents that occurred on the trip of September 29, 2006. Ms. Clements, of course, was driving the bus. Ms. Keating was seated in the first row on the right side, on the aisle. A man was seated beside her by the window (“Mr. X”). Mr. Lumb was seated by himself on the right side, four rows from the front. Ms. Keating, Mr. X and Ms. Clements were engaged in some light conversation, with Ms. Keating doing most of the talking. Ms. Keating noted during this conversation that she had MS. An elderly man got on the bus and engaged in a discussion with Ms. Clements about where he was going so she could sell him the appropriate ticket. From their brief discussion, it was obvious that the man was Italian, with poor English skills. Once the ticket purchase was completed the man moved down the aisle to find a seat. It was at this point that Mr. X said “No speak-a English”, in a normal tone to passengers near the front of the bus. By looking in her mirror, Ms. Clements saw the Italian man turn to face the front and she assumed he had heard the comment. She was bothered by the statement made by Mr. X and thought that it was incumbent on her to say something. It was then that she said “You guys speak English, don’t you!” No one responded to her comment, the Italian man found a seat and the incident was over. There were approximately four or five passengers of South Asian and African dissent sitting near the front of the bus.

8Mr. Lumb is an English language teacher. He was reading a book during the trip. From what he observed, he thought that the driver and the two passengers in the front had met previously. Other than the key comments made by Mr. X and Ms. Clements, Mr. Lumb testified that he did not hear or witness the entire event, so that he could not say what precipitated their comments. He found the drivers comment to be offensive, because it belittled persons who were in a minority. Mr. Lumb agreed during cross-examination that there were contexts within which the words used by the driver would be perfectly acceptable and not offensive.

9Ms. Keating testified that she was offended by what Mr. X said, but not by what the driver said, although she did add that others may feel differently. It was her belief that the driver made her comment to diffuse the situation and that she succeeded because no one was upset or said anything else. Ms. Keating testified that, after the incident with the Italian man, Mr. X made a sarcastic comment about her MS and Ms. Clements told him that what he said was terrible, which had the effect of stopping Mr. X from making further comments of a similar nature.

10Ms. Clements testified that she “felt bad” for the Italian man because of the comment made by Mr. X. Unwilling to agree with Employer counsel’s repeated suggestion to her during cross-examination that Mr. X’s comment was racist, Ms. Clements continued to respond that she was bothered by the comment, which she considered inappropriate and degrading. She indicated that she made her comment because she wanted to defend the Italian man, to diffuse the situation and to try to ensure that the comment from Mr. X did not escalate into a serious confrontation. She stated that she did not intend to say anything inappropriate or to offend any passenger. She indicated that her comment was not a question to passengers, but was merely a statement intending to bring the incident to a conclusion. She agreed with Employer counsel that the best response would have been for her to tell Mr. X that his comment was inappropriate.

11Another incident occurred during the trip which was the subject of some evidence. Since the Employer did not rely on the conduct of Ms. Clements during this incident as a basis for discipline, the incident warrants a brief reference. While travelling on Highway #401, a car cut in front of the bus, nearly causing an accident. Mr. Lumb claims that when this occurred, Ms. Clements said “Fuck”. He believed that the use of such language by the driver was not appropriate. During his cross-examination, Mr. Lumb insisted that it was not Ms. Keating who used the offensive word. Ms. Clements testified that she did not say “Fuck”, and Ms. Keating indicated that she was the one who said the word.

12Ms. Keating insisted that the incident with the car be reported to the Police. Ms. Clements phoned Mr. Chilton, explained what happened and gave him the plate number and description of the car. Ms. Clements and Ms. Keating exchanged names and telephone numbers at the request of Ms. Clements. She made this request in case there was a complaint about the car incident.

13The text of Mr. Lumb’s written complaint to the Employer against Ms. Clements is as follows:

I was a visitor to the City of Toronto seeking work on the week of September 25. This is a letter of complaint concerning what I witnessed on the GO Bus route servicing from Bramalea Centre Station to York Mills Subway Station between the hours of 12:15 pm to 1:15 pm, on Friday September 29.

The GO Bus driver, a woman in her mid-fifties, was speaking with two other persons of similar age, a woman and a man. Both of these persons sat in the immediate front seat on the right side of the aisle, in order to converse with the bus driver. By their friendliness, I took it that they knew one another very well from having taken this bus route together for many years. The conversation they were having seemed harmless at first until there was a mention of the other passengers riding on the bus. In reference to the other passengers the man said in an undertone “No speak-a English”. This just encouraged the bus driver to say aloud to the other passengers “You guys speak English, don’t you?” to which no passengers gave any reply. I think the other passengers, like myself, were deeply offended and not amused. I thought the bus driver could have demonstrated better judgement by not participating with the man’s degrading racist comment.

The second event that occurred on this GO Bus route was en-route to Yorkdale Shopping Centre via Highway 401. There was a moment on the highway where a white Mercedes Benz, in the fast lane, almost came into the left side of the GO Bus. The driver of the Mercedes Benz, a female in her mid-twenties was very careless for not shoulder-checking before changing into the right lane. The GO Bus driver, however, used foul language toward the driver of the Mercedes Benz. Had there been any young children aboard this GO Bus, their ears would have been assaulted by such coarse language used by a member of the public service.

I was not the only witness to these events as there were a dozen other passengers also commuting to Metro Toronto that afternoon. I hope in future, that this GO Bus driver, servicing the route between Bramalea Centre Station and York Mills Subway Station, will conduct herself in a manner more fit for the public eye.

14The Employer followed its normal practice in addressing Mr. Lumb’s complaint, now referred to as a CIT. The CIT is sent to the shift supervisor to conduct the initial investigation by interviewing the driver. Mr. Chilton interviewed Ms. Clements at 5:00 a.m. on October 3, 2006, just prior to her shift. Based on what Ms. Clements told him, Mr. Chilton made the determination that the driver was not responsible. He sent an email setting out his conclusion to a number of individuals, including his manager, Mr. Womersley. The relevant text of this email reads as follows:

Driver Clements 7605, Please Close CIT, Driver Not Responsible;

Please note the driver insists that this statement was taken out of context, that she meant that everyone was able to communicate without any problem. Said she never meant to demean anyone or give any weight to the comment from the other passenger. She said that during this trip she avoided a collision with a white Mercedes that cut off the bus as stated, but denies that she used any bad language. She noted the name of a witness of this incident on this trip and the license number of the vehicle mentioned. Driver was counseled to avoid conversation during operation of transit vehicles, and to use tact and discretion when dealing with customers and difficult traffic situations.

15Mr. Womersley changed the CIT from “Driver Not Responsible” to “Driver is Responsible.” He deduced from Mr. Chilton’s report that Ms. Clements did not deny making the statement and he felt that it was a derogatory comment. Ms. MacRae spoke to Mr. Chilton about his failure to conduct a thorough investigation on the CIT. In his testimony, Mr. Chilton indicated that he did not have a problem with the change to the CIT. He explained that Ms. Clements became increasingly upset during their five minute discussion on October 3, 2006, and he told her to calm down. With an interest in getting her on the road, Mr. Chilton told her not to worry and that everything would be okay. Mr. Chilton felt that he had made a personal

commitment to Ms. Clements. Mr. Chilton was not aware of her disciplinary record. He did not ask her for the context of her statement, nor did he contact Ms. Keating.

16Mr. Chilton was obviously in a difficult position in this proceeding. His decision on the CIT was overturned by his manager and, in essence, he was called as a witness to explain why his initial determination was not correct. As one would expect having regard to my conclusion about the conduct of Ms. Clements, I do not believe that Mr. Chilton was wrong in deciding that Ms. Clements was not responsible. I found it at least interesting that an experienced Supervisor who had sixteen years driving experience listened to her version of the event and concluded the she was not responsible. From his testimony, I was not convinced that Mr. Chilton believed that he acted inappropriately or incorrectly when he initially decided that Ms. Clements was not responsible.

17In advising certain individuals, including Ms. MacRae, that he had changed the CIT, Mr. Womersley referred to the Conditions and noted that termination was a possibility. On the following day, he asked Ms. MacRae if there was enough to terminate Ms. Clements. In her response, Ms. MacRae indicated her impression was that termination is the appropriate action, as long as there was a proper investigation and the “at fault” can be substantiated. Mr. Womersley turned the investigation over to others as he was going on vacation. He indicated that he was not involved in the decision to discharge Ms. Clements and that he did not give any advice to anyone about what disciplinary sanction should be taken against Ms. Clements.

18A meeting with Ms. Clements and Mr. S. Rogers, the Union representative, took place on October 13, 2006. Mr. Duyn, Ms. MacRae and Mr. Chilton were present for the Employer. Ms.Clements again acknowledged that she did make the statement “You guys speak English, don’t you!” When asked to explain what occurred, Ms. Clements simply noted that they and the complaining passenger would not find the statement offensive if they had heard the entire conversation. She also indicated that she could not recall the entire conversation. The car incident was also discussed. Reference was made at the meeting to the contact information provided by Ms. Clements. Ms. Clements was advised at the conclusion of the meeting that she was suspended and the Employer indicated that it would contact Ms. Keating before making its final decision.

19On October 13, 2006, prior to the meeting, Ms. Clements called Ms. Keating and asked if she had been contacted by an Employer representative to solicit her version of what took place during the trip in question. Ms. Keating told her that no such contact had been made. Ms. Clements testified that the tone and attitude of the management representatives at the meeting and the Employer’s failure to contact Ms. Keating convinced her that she would be found guilty no matter what she said. She agreed that she should have mentioned the Italian man at the meeting, but was convinced that such a reference would not have made a difference.

20Mr. Duyn spoke to Ms. Keating by phone on October 13, 2006. He asked her first about the car incident and then asked her whether she remembered the driver saying “You guys speak English, don’t you?” Ms. Keating referred to herself as an easy going Newfoundlander and said that she was not offended by the statement. Mr. Duyn did not ask Ms. Keating about the context for comment made by Ms. Clements.

21Mr. Duyn reported the results of his interview with Ms. Keating to Ms. MacRae. Mr. Duyn then decided to discharge Ms. Clements, with Ms. MacRae’s concurrence. Although the Conditions provided that a failure to meet any of the conditions may result in discharge, Mr. Duyn believed that the only option he had under the Conditions was to discharge Ms. Clements. When it was put to him in cross-examination that he could have imposed a penalty less than discharge, he disagreed and referenced the Conditions. When Employer counsel in re-direct pointed out the use of the word “may” in the Conditions and asked about the option to impose a lesser penalty, Mr. Duyn reiterated that he had no alternative but to discharge Ms. Clements under the Conditions. It is clear from the Conditions that the Employer could have elected to impose a penalty other than discharge in the instant case.

22The letter of termination signed by Mr. G. Dyun is dated October 16, 2006. The text of the letter reads as follows:

The purpose of this letter is to confirm our conversation of Friday, October 13, 2006. In attendance were Mr. J. Chilton, Supervisor, Bus Operations, Ms. M. MacRae, Employee Relations Consultant, and Mr. S. Rodgers, Representative, ATU Local 1587.

In the meeting we discussed customer complaint #2006007074, in which you engaged in an inappropriate conversation with two other passengers on the bus. You admitted to making a comment toward passengers on the bus that was offensive.

On Monday March 6, 2006, your employment was terminated for your continued failure to provide courteous customer service and the resultant excessive number of Customer Complaints.

On March 8, 2006, you accepted a Conditions of Continued Employment contract

between yourself, GO Transit, and the Amalgamated Transit Union Local 1587.

Two of these conditions are listed below:

“The employee must dramatically improve her interaction skills with GO

customers, fellow employees and members of the public. Her success will

be judged through condition #7 below.”

“The employee must not receive any Customer Complaints, which are

assessed at being ‘at fault’ on her part.”

As a result, you have breached your Conditions of Continued Employment.

Therefore, based on the latest incidents and your overall performance record, your employment is terminated effective immediately for just cause.

23Mr. Armitage testified that drivers are trained not to escalate or get involved with the problem when confronted with conflict situations. He indicated that the driver should bring the event to a conclusion by simply telling the offender that the conduct is inappropriate and not to do it again. He claimed that Ms. Clements did not do this in this instance, but instead made a comment that was offensive to a person for whom English was a second language. Mr. Armitage agreed in cross-examination that there were no magic words to use with difficult passengers. He also agreed that the training drivers receive does not specifically address what a driver is to do when a passenger makes a racist comment. Ms. Clements confirmed in her testimony that she had not received such training.

24Mr. Womersley and Mr. Duyn testified about what was wrong with the statement made by Ms. Clements. Mr. Womersley indicated that her comment was derogatory given the Employer’s diverse customer base where it is often the case that English is not the first language. Mr. Duyn stated that her statement was derogatory because she questioned the language ability of customers. Ms. MacRae indicated that the comment was inappropriate but did not explain why she believed it was inappropriate. These three witnesses were very clear on one issue. They were emphatic that the statement made by Ms. Clements was offensive irrespective of the context within which it was made.

25In his very through submissions reviewing the facts and the law, Employer counsel argued that the Employer was correct when it concluded that the statement made by

Ms. Clements was offensive, contravened the Conditions and that the breach of the Conditions warranted the penalty of discharge. In addition to the policy documents entitled Policy and

Guidelines On Racism and Racial Discrimination and Policy on Discrimination and Language prepared by the Ontario Human Rights Commission, Employer counsel relied on the following decisions: Re United Parcel Service Canada Ltd. and Teamsters Union, Local 938 (1994), 37 C.L.A.S. 299 (Mitchnick); Re Toronto Transit Commission and A.T.U., Local 113 (1998), 10 C.L.A.S. 113 (Davis); Re Toronto Transit Commission and Amalgamated Transit Union, Local 113 (1980), 1980 CanLII 3995 (ON LA), 28 L.A.C. (2d) 184 (McLaren); Re Brantford (City) Public Utilities Commission and A.T.U., Div. 685 (1991), 1991 CanLII 13318 (ON LA), 22 L.A.C. (4th) 326 (Verity); Re Trent-Wager Inc. and A.T.U., Local 1624 (1997), 50 C.L.A.S. 438 (Howe); Re Kemess Mines Ltd. and I.U.O.E., Loc. 115 (2006), 2006 CanLII 93359 (BC LA), 152 L.A.C. (4th) 232 (Hope); Re Canada Safeway Ltd. and U.F.C.W., Loc. 832 (2006), 88 C.L.A.S. 12 (Graham); Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712; Re Loomis Courier Service and C.A.W. Canada, Locs. 4215, 4215B & 4278 (1999), 1999 CanLII 35918 (CA LA), 79 L.A.C. (4th) 422 (Pelton); Re Slocan Group – Mackenzie Operations and P.P.W.C., Loc. 18 (2001), 2001 CanLII 61988 (BC LA), 97 L.A.C. (4th) 387 (Taylor); Re Sudbury Regional Hospital and C.U.P.E. (2004), 77 C.L.A.S. 152 (Roberts); and, Re Toronto east General Hospital Inc. and Service Employees International Union (1975), 1975 CanLII 2133 (ON LA), 9 L.A.C. (2d) 311(Beatty).

26In arguing that the statement by Ms. Clements was not offensive when viewed in its context, Union counsel relied on the following decisions: Angeconeb v. 517152 Ontario Ltd. and Ruby Cullen (1993), 19 C.H.R.R. D/51 (Ont. Bd.Inq) 452; Re Kingston General Hospital and O.P.S.E.U., Local 442 (1992), 27 C.L.A.S. 543 (Stewart); Re Continuous Colour Coat Ltd. and U.S.W.A., Local 7685 (1989), 15 C.L.A.S. 43 (Marcotte); and, Re Steel Equipment Co. Ltd. and U.S.W.A., Local 3257 (1964), 1964 CanLII 984 (ON LA), 14 L.A.C. 356 (Reville).

27I reviewed and considered the material and decisions referred to me by counsel. Although the decisions contain useful general principles, I did not find them to be particularly helpful in dealing with the unique circumstances of the instant case.

28I had no difficulty accepting a number of propositions advanced by the Employer. Customer service is an important and even critical component of the Employer’s transportation business. Drivers are obliged to be respectful to customers and a higher standard of conduct is required when employees interface with the public, particularly when the employer is publicly owned and operated. Although language is not identified in human rights legislation as a prohibited ground of discrimination, there may very well be a link between language and prohibited grounds of discrimination, such as ancestry, ethnic origin, place of origin and race. Any conduct by drivers that constitutes discrimination of any sort, which could include a reference to language, is completely unacceptable and such conduct would warrant a disciplinary response, perhaps a severe one.

29In my view, it is difficult to assess the nature of the statement made by Ms. Clements without placing it in the context within which it was made. Ms. Clements provided the context for her statement and her testimony was corroborated to a significant degree by Ms. Keating. Mr. Lumb was not able to provide us with much of a contextual framework for analyzing the statement. I was quite prepared to accept Ms. Clements’s explanation and motivation for making the statement.

30After servicing an elderly Italian man who did not speak English very well, Mr. X said “No speak-a English” as the Italian man was walking down the aisle, within hearing range. There is no dispute that it was incumbent on Ms. Clements to say something in the face of a clearly inappropriate remark. She recognized that Mr. X’s comment was inappropriate and degrading. She could have told Mr. X that his comment was inappropriate and left it at that. But she also felt sorry for the Italian man, who she believed heard the comment from Mr. X, and she wanted to send the message that everyone, including the Italian man, could communicate adequately. This is what she indicated to Mr. Chilton when the CIT was first brought to her attention. Her statement was intended to be inclusive, rather than exclusive. It was made to end any further comment from Mr. X and to address any feeling of inadequacy about language that his comment may have generated. There is no doubt that she could have used different words to express her intention. However, I had no doubt that Ms. Clements did not intend to demean the passengers on the bus or to give any credibility to the comment of Mr. X. Her comment was not intended to be critical of anyone’s ability to speak English and there is no discernable link between what she said and an attempt to discriminate on the basis of any prohibited ground. In my view, a reasonable passenger on that trip, aware of the entire context, would recognize her statement for what it was, namely an effort on her part to address the suggestion by Mr. X that the Italian man could not speak English by indicating that passengers could communicate adequately in English. Taken objectively and certainly within the context of what was happening at the time, I was satisfied that the statement made by Ms. Clements was not offensive and that her conduct in these circumstances was not culpable.

31In considering the appropriate remedy in this case, I did consider the relevance of Ms. Clements’s decision not to disclose the complete context of her comment at the meeting held on October 13, 2006. Such a failure in certain circumstances could affect the remedial response. There is no doubt that Ms. Clements should have disclosed the entire context of her comment at the meeting. She believed, and in my view with some justification, that the end result would not be affected by anything she had to say. Mr. Womersley was inquiring about the possibility of a discharge without having any idea of the context of her statement. After the meeting on October 13, 2006, Mr. Duyn could have asked Ms. Keating about the context of the statement, but clearly was only interested in confirming that the statement was made. The management individuals involved in this matter, particularly Mr. Duyn and Ms. MacRae, were quite insistent that Ms. Clements made a culpable comment irrespective of the context. One can only conclude that the failure on the part of Ms. Clements to disclose the entire context of her statement at the meeting on October 13, 2006, would not have altered the result. I concluded therefore that her failure in this regard should not affect the remedy that would normally flow from the Employer’s breach of the Collective Agreement.

32It was for the forgoing reasons that I concluded that Ms. Clements did not breach the Conditions and did not engage in culpable conduct on September 29, 2006, and why I allowed her grievance and directed the Employer to reinstate her and fully compensate her for her losses.