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Home My WebLink About2012-3984.Kay.14-08-29 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2012-3984, 2012-3985, 2012-3986, 2012-4299, 2013-1047, 2013-3477 UNION#G-81-12-BOE, G-90-12-BOE, G-91-12-BOE, G-115-12-BOE, G-25-13-BOE and G-65-13-BOE IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Amalgamated Transit Union - Local 1587 (Kay) Union - and - The Crown in Right of Ontario (Metrolinx - GO Transit) Employer BEFORE Owen V. Gray Vice-Chair FOR THE UNION Carlo Di Giovanni Ursel Phillips Fellows Hopkinson LLP Counsel FOR THE EMPLOYER Amanda Hunter Hicks Morley Hamilton Stewart Storie LLP Counsel HEARING September 11, November 25, 2013; March 28, April 11 and 15, June 26, 2014. DECISION [1] Between August 2012 and May 2013 the employer disciplined the grievor on five occasions. Each discipline was grieved. The grievances were referred to arbitration, and hearings began in September 2013. The employer discharged the grievor following an incident in November 2013. The union grieved the discharge. At that point the employer was still presenting its case in chief with respect to the other grievances. The parties agreed that the discharge grievance should be heard together with the others. Hearings continued thereafter, during which the parties presented evidence and argument with respect to all six grievances. [2] This decision addresses each grievance in the order in which the discipline complained of was imposed. Background [3] The grievor is 52 years old. He became a GO bus operator in March 2001. There is no complaint about his technical skill as a driver of buses. The discharge and (with one exception) the discipline resulted from complaints by customers about his interactions with them, which the employer concluded had been inappropriate. [4] The employer has made a strong commitment to customer service. It expects the same from bus operators and other employees who deal with its customers. [5] The grievor had a one day suspension on his record when the employer imposed the first of the discipline in issue here. It was the result of an incident in February 2012, in which he had asked a female passenger who was speaking loudly on her cell phone to “keep it down.” She objected to his giving her that direction, and loudly told the person with whom she was conversing that “the bus driver is a fucking asshole.” He then pulled the bus over at the side of Highway 7 and told her he would call the police if she did not get out of the bus, which she did. [6] That suspension was grieved. The grievance was not pursued after the letter confirming the suspension was revised in late March, 2012. The revised letter notes the - 2 - grievor’s acknowledgement that his actions were inappropriate. It also notes that when management interviewed him about this incident it had expressed concern about other passenger complaints concerning his having shown frustration with customers who used electronic devices. Three day suspension for conduct on August 1 and 2, 2012 – Grievance G-81-12-BOE [7] The first discipline in issue is a three day suspension that was imposed after GO Transit received a complaint from a female passenger referred to here as “S. R.” She complained that “As a mother and woman of colour” she had felt “discriminated, abused and harassed” by the grievor on trips from York University to Square One in Mississauga on August 1 and 2, 2012. [8] S. R.’s complaint alleged that at the beginning of the trip on August 1st the driver refused to load her stroller in the luggage bay, saying he had a bad back. Another passenger had then volunteered to load the stroller. When she sat in the front passenger seat with her crying 12 month old baby the driver told her she would have to go to the back of the bus because the crying distracted him. She alleged that when she refused to move he said “you people,” which she characterised as racist. He refused to provide his name when she left the bus at her destination. When she started up the steps to board the bus on August 2nd he blocked her way to tell her that if her baby was going to cry again she would have to move to the back of the bus. She again refused. When she tried to calm her baby with a musical toy during the trip he told her to turn it off. [9] Randy Curnow is a Supervisor of Bus Operation, East Region. Mr. Curnow interviewed the grievor about the complaint on August 7, 2012 in the presence of a union representative and another member of management. The grievor and Greg Duyn, who was then Acting Manager, Bus Operations, East Region, both testified that Mr. Duyn was that other member of management. At the meeting the grievor admitted that some of the things alleged in the complaint had occurred, although differently than - 3 - described. He strongly denied other allegations in it, particularly the conduct that she had said was racist. [10] The grievor acknowledged that S. R. had asked him to load her stroller. He said she had done so in a rude, demanding manner. He acknowledged having responded by saying that he had a bad back. He had recently returned to work after a non-work- related injury and was concerned not to re-injure himself. He denied having expressly refused to help, however. He explained that he had hoped that when he said he had a bad back some other passenger would volunteer to help, and one had. If that had not happened, he said, then he would have cautiously assisted. He acknowledged having asked, but not insisted, that the woman move farther back in the bus, not “to the back of the bus,” if her child was going to cry. She insisted on sitting where she wished. He asked a passenger who was boarding whether he was being unreasonable. The passenger said S. R. should be able to sit up front if she wished. He said nothing further to S. R. about it during that trip, despite the baby’s nearly constant screaming throughout. He took great offence at the accusation that he had said “you people” or otherwise behaved in a racist manner, which he denied. He noted that when the bus reached Square One he had unloaded the stroller for the passenger. [11] On August 2nd, when the grievor saw that he had S. R. as a passenger again, he left the bus and spoke to a Go Customer Care Coordinator by telephone. He asked whether it would be reasonable to ask a mother with a crying/screaming baby to move back in the bus. He was told it would be. Then, when S. R. entered the bus, he raised his arm to get her attention but did not touch her or block her way, and again requested, but did not insist, that she move farther back in the bus if her child was going to cry. She again refused to move, and again he did not say anything more about it despite the baby’s periodic crying. He acknowledged having requested, but not required, that she turn the musical device down, not off. [12] The grievor told Mr. Curnow that there was a regular passenger of his on the bus both days who he thought would confirm that he had not acted improperly. Mr. Curnow told the grievor that he would interview her before any decision was made. - 4 - [13] The grievor testified that the following morning he telephoned Mr. Duyn, who told him that they had believed his version of the events. Mr. Duyn testified that he had indeed believed the grievor’s account, although he did not remember having said that to the grievor and did not believe that he had. He said his interactions with the grievor had always been positive, and that the truthfulness of what the grievor said about his interactions with passengers had never been a question for him. What he struggled with, he said, was how the grievor handled customers and how the grievor thought customers should be handled and the grievor’s perspective on the employer’s expectations in that regard. He testified that the grievor’s reactions on this occasion had not been in line with the employer’s expectations. [14] Mr. Curnow testified about this discipline in the employer’s case in chief and was cross-examined about it again when he was recalled as a reply witness. He said that on August 8, 2012, the day after he interviewed the grievor, he had a conversation with another member or members of management (whom he said might have been Mr. Duyn) and was told that the grievor would have to be suspended. He was initially surprised that this would be decided without first interviewing the witness, as he had told the grievor they would do. The reasons for this were explained to him later, he said, but not before he had to go find the grievor and bring him to a meeting at which the discipline was to be imposed. In that context, when he found the grievor he had said “I have some bullshit to tell you,” and forewarned him that he was going to be suspended. [15] Mr. Curnow testified that when he later heard the explanation it made sense to him. Part of it, it seems, was that the witness had not boarded the bus at York but at a subsequent stop at Steeles Avenue. (Mr. Curnow’s testimony that they knew this as a result of the interview on August 7th was unchallenged.) Because she had boarded at a later stop she would not have witnessed what occurred when the trips began, and management had concluded that she could do no more than serve as a character witness. - 5 - [16] Mr. Curnow’s testimony was that a three day suspension was imposed on August 8, 2012 because the grievor had previously had the one day suspension to which I referred earlier. A letter dated August 20, 2012 was later issued over Mr. Curnow’s signature confirming the suspension. It read as follows: The purpose of this letter is to confirm our interview of August 8th, 2012. Also in attendance were P. Bourgeios, Supervisor, Bus Operations and M. Pritchard, A.T.U. Local 1587 representative. During this interview, we discussed a complaint we received on August 3rd, 2012. This complaint describes two incidents you had on your bus, one on August 1st and another on August 2nd, 2012. A female passenger with a young child approached you and asked you to stow her stroller in the luggage bay. You opened the luggage bay and informed the passenger that you would not be able to load the stroller as you had a bad back. The passenger then stated that she had a bad back as well. Another passenger interrupted the conversation and offered to load the stroller. Once you were on the bus, the lady with the infant sat in the open side front seat. When the infant started crying, you told the lady she should move further back on the bus, as the crying from her baby was distracting. The lady refused to move back. You could see that the lady was irritated by your request so you refrained from further interaction. On August 3rd [sic], you had the same passenger again. When she sat in the front seat, you again mentioned to her that if the baby was going to cry, she should move back further in the bus. The passenger became upset with the way you handled the situation, indicating she had the right to sit wherever she wanted. Another passenger that witnessed the event also indicated that your request was unreasonable and that you should let her sit wherever she wanted. During the interview we reviewed your letter of suspension, dated March 29, 2012 in which you left a passenger stranded after a confrontation you had. During that meeting you made it clear that you understood the spirit of the Passenger Charter and committed to an immediate improvement in your customer service skills. Your continued lack of good judgement, when dealing with our passengers, is a concern to us. Knowing how to handle your passengers in a positive way is not only critical to the success of our business, it is also a promise we have made in our Passenger Charter. You were notified in the meeting that as a result of your actions, you were suspended without pay for three days … You will also be scheduled to take a mandatory training course as designated by the company. You committed to an immediate and substantial improvement to your customer service skills. Failure to meet this commitment will result in increased disciplinary action, up to and including termination. It is clear from this that the grievor was not disciplined for making an alleged racist remark or otherwise acting in an allegedly discriminatory fashion. There is no suggestion that this was not made clear to the grievor during the meeting of August 8, 2012. - 6 - [17] When he returned to work after his suspension the grievor spoke to the passenger whom he had suggested as a witness. He told her that he had been disciplined as a result of the events on August 1st and 2nd. She volunteered to speak to his supervisor and offered her contact information. The grievor gave that information to Mr. Curnow, who did speak to the witness by telephone on August 20, 2012. She provided a statement by email the following day. She said that she was also a woman of colour, that she had regularly ridden the grievor’s bus and had had no issues with him. She confirmed that she had boarded the bus at Steeles Avenue on both of the days in question, and each day saw S. R. glaring periodically at the grievor. She stated that after the bus reached Square One on August 1st S. R. had loudly and rudely demanded that the grievor unload something, which it appeared he had done. She said S. R. had spoken to her about the grievor when they both got off at Square One on August 2nd, and had been upset with her when she did not share or support S. R.’s negative opinion about the grievor. [18] Mr. Curnow testified that helping passengers load and unload their baggage into and from the bay under the bus is part of a bus operator’s job. He said that a bus operator who reports that he is ready to return to work following an injury, as the grievor had done prior to these incidents, is taken to be and expected to be ready to perform all aspects of his job, including that one. This was not challenged or contradicted. Was there cause for discipline? [19] S. R., the grievor and his witness all testified about the incident. It is unnecessary to resolve the conflicts in their testimony. The only difference between the grievor’s version and the version on which the employer based its discipline concerned whether the grievor had expressly said he could not help load the stroller when he answered the passenger’s request or demand that he do so by saying he had a bad back. I do not think it matters whether he did or not. [20] Whether or not the grievor expressly refused to help S. R. load her stroller in the luggage bay, an unwillingness to do so was clearly implicit in his response. This was a - 7 - refusal to do his job, whether or not he was secretly prepared to relent if no passenger volunteered to do it for him. It was no less part of his job, and his refusal to do it was no less a violation of his duty to his employer, if the request or demand that triggered that duty was made rudely. This refusal to do his job was clearly disciplinable. [21] When he asked the Customer Care Coordinator whether it would be reasonable to ask a passenger with a noisy baby to move back in the bus he did not say that the passenger in question had taken obvious offence to the very same request the previous day. Accordingly, the answer he received is not particularly pertinent to the question whether the grievor’s requests were something for which he could be disciplined. [22] It might be debated whether the grievor’s first request, considered in isolation, warranted any more than counselling or a warning at that stage in the grievor’s disciplinary history. Having seen S. R.’s response to that first request, however, it was clearly poor customer service for the grievor to repeat it the second day, and that added to the disciplinable character of his interactions with her. [23] I am not sure that the grievor’s having asked S. R. to turn the musical toy either down or off on the second day, considered in isolation from the other things that happened on that and the previous day, would have warranted any more than a warning. The fact that it was directed to a passenger with whom the grievor was already in conflict as a result of at least two inappropriate interactions makes it more troubling. [24] Discipline was warranted. Was the discipline imposed excessive? [25] Union counsel argued that if a one day suspension was the appropriate discipline for conduct that culminated in the grievor’s ordering a passenger off the bus short of her destination at the side of the highway, then a three day suspension was an excessive reaction to the grievor’s errors of judgment on this occasion. He submitted they should not have been the subject of anything more than counselling or a warning. Employer counsel observed that the employer was applying progressive discipline, that - 8 - the grievor had already had a one day suspension for poor customer service and that applying a three day suspension for subsequent poor customer service was simply the way of things in progressive discipline. [26] The primary object of discipline (short of discharge) is correction rather than retribution. Properly administered, discipline should be only severe enough to correct, warn and reform the employee, as well as to deter that employee and others from similar conduct. Progressive discipline warrants applying a punishment greater than the minimum that might otherwise have seemed sufficient for those purposes only if the individual’s having received discipline on a prior occasion or occasions suggests that the minimum is not likely to achieve full correction on this occasion. Progressive discipline is not a matter of mechanically incrementing the discipline last imposed, without considering both the nature of the misconduct for which the discipline is to be imposed and the nature of the misconduct for which previous discipline was imposed. When the current misconduct is a repetition in all material respects of the earlier offence then the case is strong for discipline greater than that previously imposed, particularly if the time between the past discipline and the current offence is not great. When the current misconduct is totally dissimilar in nature from anything for which discipline has previously be imposed, then the relevance of the earlier discipline is much less clear, particularly if the record does not demonstrate that the wrongdoer is generally more difficult to correct than might ordinarily be expected. [27] I agree that when it is considered in isolation from his record, the conduct in which the employer correctly concluded that the grievor had engaged on these two days was less egregious than the conduct for which he had previously received the one day suspension. I accept that characterizing both this and the previous misconduct as involving customer service does not support an increment in discipline as strongly as if the current conduct had been another instance of ordering someone off the bus, although I would say that in that case the justifiable increment in discipline might well have been greater than the increment here. The fact that the previous discipline was for an inappropriate interaction with a customer, albeit a more egregious one, is not a neutral consideration however. - 9 - [28] Union counsel argued that the penalty for this incident should be mitigated by the unfairness of the employer’s having imposed discipline without first interviewing the witness to whom the grievor had referred in his interview. He cited the last two sentences of the following passage in Horizon Plastics International (2013), 235 L.A.C. (4th) 16 (Baxter): [83] On the issue of whether a suspension should be substituted in place of discharge, the Union urged me to draw an adverse inference against the Company for its failure to call Mr. Leonard to explain how he carried out his investigation. In support of this position, the Union relied on Dimplex North America Ltd. - Cambridge Division v. U.S.W.A., Local 8698 [2006] L.V.I. 3649-7, supra. In that case, the entire evidence before the arbitrator consisted of hearsay testimony by a Ms. Betty Burke the Company's Distribution Manager. The supervisor involved in the incident, that gave rise to the discipline and had direct knowledge, did not testify. Faced with nothing to base his decision on but hearsay evidence, the arbitrator correctly determined that the Company failed to discharge its initial onus to establish just cause for the disciplinary action against the Grievor. [84] In the case before me, Mr. Leonard was not a witness to what occurred on July 10, 2012, and his testimony would not have shed further light on whether or not the Grievor committed the alleged misconduct. As such, I am not prepared to draw the inference the Union seeks. However, the evidence was clear that at no time prior to his termination was the Grievor confronted with, or given the chance to explain the statement made by Mr. Beattie. He may very well have recanted at the time, but we will never know. It is this act of the Company which leads me to the conclusion that Mr. Leonard's investigation was flawed or to put it another way, not entirely fair. Accordingly, I find this to be a factor that goes to mitigation of the penalty. The flaw identified by that arbitrator was failing to put to the grievor during the investigation another employee’s version of the events in issue, a version that it seems the arbitrator ultimately accepted. The arbitrator thought that this flaw had deprived the grievor of an opportunity to recant his position. I assume that this was thought pertinent because the grievor’s recanting during the investigation might have resulted in a lesser penalty, either from the employer or the arbitrator. In any event, the arbitrator does not seem to have said that a flaw in an investigation may be a mitigating factor even if it has no identifiable adverse effect on the grievor or on the outcome from the grievor’s perspective. If that is what he intended, I respectfully disagree. [29] The explanation for the employer’s having concluded its investigation without interviewing the witness begins with what the grievor says he was told on the morning - 10 - of August 8th: that management believed his version of the events. Nothing that the witness could (or subsequently did) say could improve on that outcome from the grievor’s perspective. It is unfortunate that in his attempt to show empathy Mr. Curnow characterized the news he was about to give the grievor as “bullshit.” While Mr. Curnow’s testimony drew a connection between that remark and the direction he had been given to conclude the investigation without interviewing the witness, there is no indication that he made that connection for the grievor, nor that the grievor made that connection himself. I am not persuaded that the employer’s having concluded its investigation without interviewing the witness adversely affected the outcome from the grievor’s perspective. Accordingly, it is not a factor that should mitigate the penalty. [30] In all the circumstances a three day suspension falls within the ballpark of reasonable responses to the grievor’s misconduct. I am not persuaded to tinker with it. Accordingly, the grievance with respect to this discipline is dismissed. Letter of warning for conduct on August 8, 2013 –– Grievance G-90-12-BOE [31] After he was told that he would be suspended for three days the grievor was very upset. In his anger he struck and damaged a locker in the locker room. This became the subject of a meeting on August 13, 2012, at which management warned him that such conduct was not acceptable and that further actions of that sort might lead to greater discipline. They reminded him about the Employee Assistance Program. They suggested that he speak with someone in the Program about his problems. They directed that he take a training course in conflict resolution. A letter dated August 16, 2012 confirmed the warning, the suggestion and the direction. [32] The warning was grieved. When he testified, however, the grievor acknowledged (as he had when interviewed) that his actions had been unacceptable. He said he was not adverse to a letter of warning. In his closing argument union counsel did not suggest that the discipline should be modified or set aside. [33] Accordingly, this grievance is dismissed. - 11 - Five day suspension for conduct on August 21, 2012 and forced sick leave – Grievance G-91-12-BOE [34] At the meeting of August 8, 2012 the grievor complained again about S.R.’s accusations of racism and discrimination and her distortions of the events that had occurred. He expressed concern that she might be a passenger on his bus thereafter. It seemed possible that she might, since she had said she used GO buses from York University to Square One regularly. The grievor’s then current assignment involved driving such buses. The possibility of alternative assignments was discussed, but management felt constrained from giving him any other driver’s assignment because driving assignments were the results of a periodic bidding process based on seniority in accordance with the collective agreement. The union made no suggestion that they were wrong in that regard, either in the meeting or at the hearing. In the end, the situation was that when the grievor returned to work following his suspension it would be to the same assignment. Mr. Curnow asked the grievor for his assurance that he could and would serve S. R. in a courteous manner if she sought to board his bus, despite how he felt about her. The grievor gave that assurance after conferring separately with his union representative. [35] On August 21, 2012, the grievor saw S. R. standing on the platform at York University waiting for the bus that the grievor was driving. What happened next is described, from the employer’s perspective, in this part of its letter to him dated September 12, 2012: This letter will confirm our interview of August 28th, 2012 with you, K. Lamb (Supervisor, Bus Operations) and J. Boyd (A.T.U. Local 1587 representative) in relation to an incident on August 21, 2012. On August 21, 2012, you called the GTCC to inform that you were going to refuse service to a passenger who you have had issues with prior. You were given a specific instruction not to refuse service to said passenger. You refused to accommodate the passenger, and in your radio conversation you referred to the passenger as [here the letter quotes some quite inappropriate language]. The passenger in question was the same who you have had incidents with on August 1 and August 2, 2012. As a result of your actions on August 1 and 2, you were issued a 3 day suspension without pay. During the interview on August 8, 2012, it was made clear to you that you were to carry this passenger in the future and you agreed to do so. - 12 - Failing to follow the instruction of your supervisor and using inappropriate language in the workplace is completely unacceptable and will not be tolerated. You were immediately suspended without pay for insubordination, inappropriate behaviour, and for your overall performance. Your continued lack of good judgement when dealing with our passengers, is a concern to us. Knowing how to handle your passengers in a positive way is not only critical to the success of our business, it is also a promise we have made in our Passenger Charter. It is GO Transit's expectation that all employees communicate with their co-workers, supervisors, and members of the public in a professional, courteous and respectful manner at all times. It is also GO Transit’s expectation that employees follow directions from their respective supervisor as requested while on duty, unless such activity requested is an illegal or an unsafe act. Your two recent suspensions, which were passenger related, and an incident where you lost your temper and destroyed company property, resulted in a Disciplinary Letter and mandatory E.A.P. referral. You were notified in the meeting that as a result of your actions, you were being suspended without pay for five days … The radio conversations to which the letter refers occurred over an open channel that other GO personnel, and perhaps customers, might have heard. In quoting the letter I have omitted the actuals words that it said the grievor had used to describe S. R. The employer’s characterization of those words as inappropriate is not challenged, nor is the allegation that the grievor used them. [36] The grievor takes issue with the proposition that he “refused” to pick up S. R. He claims he was unable to do so, and that that is what he had said at the time. He does not otherwise dispute the employer’s description of what he did and said. He says that although on August 8th he had thought he could pick the passenger up again, he found he could not when he saw her waiting at the platform. He said he had experienced feelings he described as a panic attack or nervous breakdown, and said that the admittedly inappropriate language he had then used to describe the passenger was a manifestation of his breakdown. [37] George Zebrowski is a Supervisor of Bus Operations for the East Region. He heard the radio exchange. He interjected, directing the grievor to get off the radio, stand down and await his arrival. He arranged for a replacement driver to take over the grievor’s bus, drove to York, picked up the grievor, and drove him back to home base at the Steeprock garage. He testified that the grievor was visibly upset, cried from - 13 - time to time, and asked whether he was going to be fired. When they got to Steeprock he told the grievor he was suspended without pay and that there would be a meeting to discuss the matter. Mr. Zebrowski had concerns about the grievor’s driving himself home, given the state he was in. He offered to arrange a lift for him, but felt he could not stop the grievor when he said he could drive himself home. He urged the grievor to call the EAP and speak to the union. [38] The grievor testified that he did call EAP the next day. This eventually resulted in his seeing a psychologist named Richard Amaral. Earlier, after the August 8th meeting, he had made an appointment to see his GP in early September about getting anti-depressant drugs. He testified that on August 22nd he went to a walk-in clinic, told them his GP was away and asked for anti-depressants. He says a doctor there gave him a month’s supply. [39] On August 28, 2012, Mr. Zebrowski met with the grievor in the presence of another Supervisor and a union representative. This was the last day of the five day suspension that was imposed that day. At the meeting the grievor continued to say that the passenger had fabricated things, was a liar, and had caused him stress. Mr. Zebrowski felt that given whatever stresses the grievor was having he was not in a condition to drive buses. He told the grievor he was being placed on sick leave, that he would have to see someone at the EAP and could return when there was documentation that he was fit to come back to work. Mr. Zebrowski saw this as a way that the grievor could receive sick pay while he got the help that it seemed he needed. After the portion quoted earlier, the letter of September 12, 2012 said (emphasis as in the original): You were also informed that effective August 29th, 2012, you would be placed on Sick Leave until further notice. You were informed that you would be required to attend a mandatory monitored EAP program along with mandatory counselling which includes an Anger Management program. You were also informed that this requirement is mandatory and that failure to complete the program will result in termination of your employment. You have previously committed to immediate and substantial improvements to your customer service skills. yet this remains a critical issue in your performance. Note that your performance and conduct is a critical concern to the organization. - 14 - Future unacceptable behaviours, including incidents of this nature, may result in further disciplinary actions being taken, up· to and including, if warranted, termination of your employment. [40] The grievor testified that he was told to contact Peter Langston in HR, who told him he had to see Dr. Sam Claridge, a psychologist, who would assess whether he was fit to return to work. Dr. Claridge was on vacation, and the first that the grievor could see him was on September 11, 2012. The grievor testified that the anti-depressants were helping by the time he saw Dr. Claridge. He said that Dr. Claridge told him at the end of that meeting that he seemed fit to return to work, and that he would tell Mr. Langston that. The grievor had not yet been contacted to return to work when he went to his next session with Dr. Claridge a week later. Dr. Claridge was surprised that he was not back at work, since he had sent an email to Mr. Langston. He said he would send another email. On the Thursday of that week the grievor called and left a message for Mr. Langston. He also called Mr. Zebrowski and explained the situation. Mr. Zebrowski asked him to come to a meeting that Friday. The grievor testified that he was returned to work thereafter, nearly two weeks after being deemed fit to do so by Dr. Claridge. [41] The grievor does not claim that he was able to return to work on August 29th, but says he could have returned a couple of weeks after that, and perhaps sooner. The parties were initially in dispute about whether a claim for lost pay due to the grievor’s allegedly delayed return to work was part of this grievance. Eventually they agreed that such a dispute could be treated as an outstanding aspect of the grievance, one that I should determine (if the parties are unable to settle it) after a further hearing at which they can adduce additional evidence relevant to that dispute. [42] In the course of his testimony the grievor recounted opinions that he said Dr. Amaral and Dr. Claridge had expressed to him. Neither of them was called as a witness. To the extent that their opinions might be pertinent to any issue I have to decide at this stage, I have given no weight to the grievor’s hearsay account of them. - 15 - Analysis and Decision [43] Union counsel’s argument with respect to the five day suspension is that the behaviour for which it was imposed was the result of an illness and therefore not properly the subject of any discipline. He says the employer’s having placed the grievor on sick leave as of August 29th was an acknowledgement of that illness. He submits that I can find that the grievor was ill on the basis of the grievor’s testimony about what he felt on August 21, 2012 and the evidence of how he behaved on and immediately after that day, including what I heard in the recordings of what he said on the radio. [44] Employer counsel argues that a finding that someone bore no responsibility for their improper behaviour because of a mental illness should not be made here in the absence of expert evidence to support it. I agree. [45] By his own account the grievor saw a physician the day after the event, a physician with whom he interacted sufficiently to elicit a prescription for anti- depressant drugs. Shortly afterwards he saw two different psychologists. None of these experts testified in support of the grievor’s self-diagnosis. I can only infer that that is because the union did not think their testimony would be helpful. [46] Employer counsel also argues that the employer’s decision on August 28th that it needed expert assurance that the grievor was fit to operate buses before permitting him to do so, and its decision to put him on sick pay until it had such an assurance, is not proof that he was so ill on August 21st as to have no (or diminished) responsibility for his misconduct that day. I agree. [47] The grievor’s behaviour on August 21st, coupled with how he presented at the meeting on August 28th, raised a reasonable question about whether there was something wrong with the grievor that would interfere with his properly operating a bus. The members of management involved were not in a position to assess that themselves. It was not unreasonable for them to seek professional guidance, while at the same time imposing discipline that telegraphed to the grievor and others the seriousness of the grievor’s having failed to comply with a direct order to do what he - 16 - had specifically promised he would do if the occasion arose. If his being steered toward help had resulted in a diagnosis that on August 21, 2012 the grievor had had a mental illness that was so profound as to rob him of the ability to do what he had previously undertaken to do and of control over what he said, then the discipline would have required reconsideration. As it is, no such diagnosis was forthcoming, either then or at the hearing. [48] On the evidence properly before me, and in the absence of supportive expert testimony, I am not persuaded that the grievor’s responsibility for his actions on August 21, 2012, was reduced or eliminated by a mental health problem. Immediately after he learned of S. R.’s complaint the grievor was undoubtedly reluctant to expose himself again to the risk she presented as someone who, from his perspective as he explained it in testimony, was prepared to lie about him in order to do him harm. He nevertheless agreed to take that risk if the occasion arose. There was nothing about that risk as of August 21st that the grievor had not known to him on August 8th when he gave that undertaking. His being and sounding distressed when confronted with the need to honour the undertaking is not surprising. What he said on the radio is consistent with his struggling with the difficult choice of having to actually honour his undertaking or suffer the consequences. It is not inconsistent with his having been capable nevertheless of doing what he had undertaken to do. [49] This was insubordination. That is a serious employment offence. It was cause for serious discipline. In all the circumstances I am not persuaded that the penalty imposed should be varied. Except regarding the issue with which the parties have asked that I remain seised, this grievance is dismissed. Five day suspension and final warning for conduct on September 26 and November 12, 2012 – Grievance G-115-12-BOE [50] On December 11, 2012 the employer imposed a further five day suspension without pay based on three customer complaints. One was about the grievor’s conduct on September 26, 2012. The other two were about his conduct on November 12, 2012. All three complaints included allegations that the grievor had reacted inappropriately - 17 - to customers’ speaking or playing music too loudly. When questioned about the complaints the grievor acknowledged having asked a passenger to turn down music on one of the occasions but otherwise denied the allegations in the complaints. [51] The employer offered no evidence with respect to the incidents that were the basis for this discipline. It acknowledges that the discipline should therefore be set aside and the grievor made whole for the five day suspension. [52] This grievance is allowed. This second five day suspension is to be removed from the grievor’s record. The employer is to make the grievor whole with respect to any loss, of earnings or otherwise, that he suffered as a result of the employer’s having imposed the five day suspension without pay. [53] The effect that the elimination of this suspension from the grievor’s record should have on the subsequent suspension and discharge will be assessed later in this decision. Otherwise, I remain seised with any dispute the parties are unable to resolve themselves concerning the amounts to be paid and steps to be taken to give effect to this “make whole” direction. Nine day suspension and final warning for conduct on February 5, 2013 – Grievance G-25-13-BOE [54] A customer complained that on February 5, 2013, the grievor had stopped the bus in which she was riding to determine the source of a noise. When she identified her telephone as the source of the sound – a beep it had made when it received a text message – she said he had twice directed her to place her telephone in silent mode, which she had refused to do. [55] The grievor was interviewed about this incident on May 6, when he returned from an absence that had begun on February 25th. He denied having stopped the bus. He acknowledged having asked where the noise was coming from. He admitted having asked the passenger to mute the device, but denied having done so more than once. [56] The employer imposed a nine day suspension without pay. It was nine days rather than ten because the grievor’s being absent without pay for those particular nine - 18 - days resulted in his not qualifying for a day’s holiday pay as well. George Zebroski’s letter of May 10, 2013, confirming the suspension said this: This letter will confirm our interview of May 6, 2013 with you, A. Laite Superintendent, Bus Operations and ATU Local 1587 representatives M. Ferrante and R. Ferraro in relation to an incident on February 5, 2013. As you were absent from February 25, 2013 to May 5, 2013, this matter was dealt with immediately upon your return to active duty. On February 5, 2013, a passenger stated after she received a telephone text. you stopped the bus to inquire about the noise her telephone had made when the text was being received. You then proceeded to tell the passenger to place her phone on the silent mode. The customer advised you that she would not place her phone on silent because she was waiting on call/messages from her children. You told the passenger again to put her phone on silent. When interviewed, you stated you never ask passengers twice to place their phones on silent. … On numerous occasions, our expectations in relation to passenger service were made clear to you and you have any [sic] numerous commitments to change your behaviour. You were also advised that as a professional driver who is responsible for the transport of our passengers. in the course of your work day. you are expected to hear certain noises and/or sounds such as passengers speaking, babies crying, music players, and cell phones. The majority of your passenger complaints are due to your lack of ability to deal with regular noises in the transport of your passengers. Your continued lack of good judgement, when dealing and addressing your passengers, has been a critical concern to us. Knowing how to handle your passengers in a positive way is not only critical to the success of our business, it is also a promise we have made in our Passenger Charter. Again. it is GO Transit's expectation that all employees communicate with their co-workers, Supervisors, and members of the public in a professional, courteous and respectful manner at all times. Your disciplinary record includes: • August 20, 2012 - 3 days suspension • August 16, 2012 - Letter of warning • September 12, 2012 - 5 day suspension • December 11. 2012 a second 5 day suspension and final warning In view of the foregoing and inconsideration of your disciplinary record, you were notified in the meeting that you were being suspended without pay for nine days and issued a final warning. Your suspension will be served from May 7-10, 2013 and May 13-17, 2013. You will not be entitled to payment for the Statutory Holiday on May 20, 2013. You will return to work on Tuesday May 21, 2013. You have previously committed to immediate and substantial improvements to ·your customer service skills, yet this remains a critical issue in your performance. Despite the commitment to improve, you continue to receive passenger complaints. - 19 - As you have now been warned about the severity of your situation on a number of occasions, and your situation now is extremely critical. Therefore, this suspension is also your final warning. Future unacceptable behaviours, including incidents of this nature, will result In the termination of your employment. The serious nature of this warning cannot be under-stated. If you have any questions or require any assistance please contact the undersigned. [57] The complainant testified. She said the incident began with the grievor turning around and saying “What is that?” She agreed that the grievor had not stopped the bus. When she realized that he must be asking about the beep her cellphone had made she told the grievor it was the source of the sound. He then asked that she turn it off. She agreed this was a request, not a demand. She testified that he said the noise bothered him. She was waiting for a text message from her child. She told him she would not turn it off. He did not repeat the request. She explained that she complained because she was embarrassed by being singled out in that way. She was also concerned that if someone driving thousands of people could not handle a cellphone beep there was something wrong, and that made her nervous. [58] In cross-examination Mr. Zebrowski was asked whether he was saying it was inappropriate for the grievor to even ask the passenger to mute her cell phone. Having earlier said that drivers are expected to tolerate the normal kinds of noise made by passengers, he answered that the cell phone beep was the normal noise a driver is expected to “deal with” (by which he meant simply accept, tolerate, and not react to). He testified that management had gone over this with the grievor in previous meetings. He said that asking the passenger to mute her cell phone on this occasion was not in accordance with the employer’s expectations. He stated that the penalty reflected progressive discipline and was determined in consultation with his Superintendent, his Manager and HR. [59] The grievor’s seeking to minimize the noise he heard from passengers or their devices was a recurring theme in complaints about his behaviour. The evidence establishes that management had indeed discussed this with the grievor from time to - 20 - time, and had told him that drivers were expected to tolerate ambient noise of the sorts to which he had reacted. [60] The grievor acknowledged this. Indeed, he acknowledged that Mr. Duyn had told him not speak to a customer about noise unless another passenger complained about it. The grievor testified that he had disagreed with this direction. His explanation of his disagreement was to the effect that he did not see why the effect of the noise on the driver should be given less weight than the reaction of customers. [61] In the course of reply testimony about his interactions with the grievor following the incidents involving S. R., Mr. Duyn said that he remembered particularly a meeting that September in which he had wanted to be clear with the grievor about management’s expectations concerning that passenger, passengers in general, customer service and devices on the bus. (It seems likely that this was the return to work meeting in late September 2012.) Mr. Duyn testified that because the grievor seemed unable to diplomatically deal with passengers in this regard he asked him to refrain from speaking to them about noise unless there was a complaint from someone else on the bus or it was necessary to take action “for the greater good of the bus.” He said he had then worked through a scenario of how the grievor might handle it if that happened. [62] When cross-examined on this Mr. Duyn testified that he did not accept that a professional driver would be affected by noises of the sort in question. He acknowledged that there was no precise, decibel measure of the amount of noise an operator was expected to tolerate, but observed, in effect, that permitting noise is part of customer service. He said that if a driver cannot tolerate sounds in a bus he is probably in the wrong line of work. [63] In his interactions with customers, in his interviews by management and in his testimony the grievor sometimes described sounds made by passengers or their devices as “distracting.” “Distracted driving” is a phrase sometimes used to describe someone’s driving while actively engaged in doing other things (like using a cell phone to place telephone calls or send texts) that take the driver’s attention away from his driving and - 21 - thereby create a safety hazard. That usage can lends “distracting” a safety connation in this context. The grievor does not contend, however, that his merely hearing a baby’s crying (or screaming) or the sound of a passenger’s musical toy or the beep of a passenger’s cell phone so took his attention away from his driving as to make it unsafe. [64] After his discharge the grievor wrote a long letter to the employer pleading for reinstatement, in which he admitted to making mistakes, including his reactions to noise, and promised not to make those sorts of mistakes again. In cross-examination his attention was directed to a part of the letter in which he promised not to make comments or requests about sounds from passengers or their devices. Employer counsel pointed out that since writing the letter he had testified that he thought it was reasonable to make such requests. He answered that he would “keep [his] nose clean” and not make such requests “unless it is a safety issue, and I don’t mean distraction.” It is clear that, for him, something could be called a “distraction” without its creating a safety issue. [65] It seems that the grievor sought to suppress passenger sounds because he found them annoying or discomforting. He preferred to drive a quiet bus. He saw no harm in asking passengers to be quiet. That was not the employer’s view, and he knew that. At more than one point in his closing argument union counsel described the grievor’s intolerance for noise as a matter for training. I am not persuaded that there was any deficit in the training that the employer gave the grievor about what he should or should not do with respect to customer noise. [66] In the course of the grievor’s testimony he referred to GTTA Bylaws that used to be posted at the front of GO buses, which prohibited operation of “any radio, tape recorder, musical instrument, or similar device in or upon any vehicle or the premises of the Authority unless the sound therefrom is conveyed to that person by an earphone at a sound level that does not disturb other passengers.” He referred to a bulletin that the employer issued in November 2013 advising drivers of a “Bus Etiquette Poster Campaign” in which one of the posters was going to show a bus in which all of the passengers appear to be talking on their cell phones, with the caption “What would - 22 - happen if we all did it?” He said that a training instructor had told him at some point in 2012 or early 2013, in answer to a question he asked, that they tell new hires that if a passenger has leaky headphones and they find it “distracting” they can ask the passenger to curtail it. [67] None of these circumstances overrides the clear direction that the grievor had been given about not speaking to passengers about their noises unless another passenger complained. His having failed to comply with that direction on this occasion warranted discipline. [68] The employer imposed a nine day suspension for this incident in light of a prior record that, from its perspective, included the five day suspension that it had imposed on December 11, 2012 for misconduct that included speaking to passengers about noise. That discipline cannot now be considered to have been part of the grievor’s record at the time of this incident. His record for purposes of assessing the penalty for the February 5, 2013 incident is as it was before that earlier five day suspension was imposed. If a five day suspension was what the employer considered appropriate, in light of that record, in December 2012, then it is difficult to see how the appropriate penalty for this instance of similar conduct can be a suspension of more than five days. In all the circumstances, including the defiance of authority inherent in the grievor’s acting contrary to Mr. Duyn’s prior direction because he disagreed with it, I am satisfied that the appropriate response would have been a five day suspension. [69] The grievance is allowed in part. I direct that the employer substitute a five day suspension without pay for the nine day suspension, and make the grievor whole with respect to any loss, of wages or otherwise, that he suffered as a result of its having imposed the additional four unpaid days, including the loss of holiday pay that that caused. I remain seised with any issue the parties cannot resolve themselves concerning the implementation of this direction. - 23 - Discharge for conduct on November 7, 2013 – Grievance G-65-13-BOE [70] The grievor was discharged for his behaviour toward a 16 year old female passenger, referred to here as “K. B.”, on a trip from Union Station to Unionville/Markham on November 7, 2013. [71] The grievor testified that as he was about to leave the platform at Union Station that evening with a nearly full bus when he saw three passengers running toward his bus. He decided to wait for them, rather than close the doors and drive off. When the three women boarded one had a Presto card out ready to “tap” in payment of her fare, but the other two did not. The station was extremely busy. He told those two he was going to take off, that they should take seats and he would call them back later to tap. He closed the door and started driving away from the platform. Once the bus was on its way and it seemed safe for those two passengers to come forward to tap he made an announcement on the bus public address system asking them to do that. One came forward came forward with a Presto card and tapped. The other did not come forward. He then made the announcement one or two more times. Eventually the other passenger, K. B., came forward. (Her testimony was that the driver’s waiving her back had made her think she would not be asked to pay until she reached her destination, so she had put on her headphones and had only removed them again when she realized the driver was making announcements of some sort.) [72] K. B. and the grievor have different accounts of what transpired between them thereafter. [73] The grievor’s account is that when K. B. reached the front she said “so you want me to pay now?” or words to that effect. He said she did so in a rude manner. She offered a large handful of apparently small coins. He was concerned not to have to stop the bus to count so many coins, as this would further delay the other passengers. He asked her if she had a Presto card. She said she did not. He asked if she had a bill. She said she did not. He pulled the bus over to count the coins. They were all quarters – 24 of them. They were not enough to pay the nearly seven dollar fare to her destination. He drew this to her attention. She said she had no more money. A female passenger - 24 - sitting behind the driver offered to pay the difference, expressing concern that the trip not be delayed further. The grievor declined that offer, saying he would find the customer another fare she could afford. He found a fare that her coins would cover, to a location not on the trip. He sold her a ticket to that location and gave her back the small amount by which her handful of quarters exceeded the cost of the ticket. It was clear to K. B. that she would be taken to her intended destination, not the destination on the ticket. She made apologies more than once, apparently directed to the other passengers. [74] The last thing the grievor said to K. B. was that he was going to bite his tongue. He acknowledges that this was inappropriate. [75] After she arrived at her destination the young customer complained to her parents, and her mother complained to the employer, that the grievor had been verbally abusive and embarrassed her. Her mother’s complaint said the driver had made a PA announcement that “I am going to have to pull over for this rude, inconsiderate young lady,” and when her payment fell short and others offered to make up the difference the driver had said “this is her problem and she needs to find or come up with the 40 cents or she will be let off the bus,” and then, after he “reluctantly … agreed” to print out a ticket for less than the amount she had, he had said “I could say some pretty nasty things but I will hold my tongue.” [76] When he was interviewed the grievor denied having made any announcement about it before he pulled the bus over to count K. B.’s coins. He denied having threatened to put K. B. off the bus. He denied having said to her “I could say some nasty things.” He admitted telling her he would bite his tongue. He acknowledged that when he did so he knew from her behaviour, including her repeated apologies to the other passengers, that she was embarrassed and upset. [77] Roxanne Kowal is the Manager, Bus Operations, East Division. She interviewed both the young customer and the grievor. She had a Supervisor ride the same bus to seek out passengers who had been on the trip in question. The Supervisor found three, including the woman who had been sitting behind the grievor and had offered to pay - 25 - the balance of K.B.’s fare. None of them would or could corroborate that there had been an announcement about pulling over or describing K. B. as inconsiderate or that the grievor had threatened to put K. B. off the bus. [78] Ms. Kowal signed the following letter dated November 28, 2013, and gave it to the grievor at a meeting held that day: On Monday. November 11, 2013, you were suspended with pay pending review of your employment status with GO Transit as a result of a complaint filed on November 8, 2013, by the parents of a minor child passenger. This complaint alleged that on the evening of November 7, 2013, your behavior towards their daughter was unprofessional and rude. You were interviewed and denied most of the allegations. An investigation into the complaint was conducted, and the passenger was interviewed. It has been determined, based on this interview and your November 11, 2013 interview that you did not want to take the coins that were offered in payment, you were not courteous, and that even though you knew the young woman was distressed, you did nothing to alleviate the situation. Your behavior did not meet GO Transit's corporate customer service standards. Over the past two years you have been repeatedly disciplined for your behavior in the workplace; almost all of your discipline was for discourtesy towards passengers. Since August of 2012, you have received a three-day suspension, two five day suspensions, and a nine-day suspension, all of which were unpaid. Your last two suspensions included final warnings. In addition, you have received a considerable amount of customer service training, including anger management counseling. Having considered the above and your failure to rehabilitate your behavior, your employment with Metrolinx/GO Transit is terminated effective immediately. Ms. Kowal testified that she made the decision to discharge the grievor for the reasons indicated in the letter, and that in her view the conduct that the grievor had admitted was cause for discharge in light of his record. [79] K. B. and the grievor both testified about the incident. Ms. Kowal gave testimony about her interviews as well as testimony of a hearsay nature, to which no objection was taken, about the attempts to find others who had been on the trip in question and ascertain whether they could resolve the discrepancies between K. B.’s version and the grievor’s. In the end, employer counsel did not ask me to find that the grievor had made an announcement about pulling over or describing K. B. as inconsiderate, or that he had said she would be put off the bus if she did not pay the full fare. She did invite me - 26 - to find (as the grievor had essentially acknowledged in his testimony) that K. B. would have known from the grievor’s demeanour that he was not happy about having to stop and count coins or about having to deal with the fare shortfall, and that everyone on the bus would have known she was the cause of the bus being pulled over and further delayed. I so find. Is the Discharge Void for breach of Article 4.14(2)? [80] In preparation for the meeting of November 28, 2013, Ms. Kowal made handwritten speaking notes that contained the following: Over the past yr: 1 – day suspension 3 – day suspension 2 5 – day suspensions ) 9 – day suspension ) including 2 final warnings plus: numerous counselling sessions suggested alternate career [81] Article 4.14(2) of the parties’ collective agreement is a “sunset” provision. It provides as follows: 4.14(2) Under the corrective progressive discipline procedure, the Human Resources office shall make null and void disciplinary documents from the employee’s file from the date of issuance of each offence on the following basis: - Written warnings - after twelve (12) calendar months; - Suspension of 4 days or less - after eighteen (18) calendar months; - Suspension of 5 days or more - after twenty-four (24) calendar months; - Discharge records to remain on file for five (5) years (unless agreed otherwise) provided the employee makes application to the Employee Relations Consultant for its removal within one month of the five (5) year expiry or any time thereafter. - Or, such documents may be removed irrespective of the above as the result of any settlements under the grievance procedure. Furthermore if an employee record has remained clear for a period of two (2) years following the expiry of the disciplinary document (i.e., the date on which it became null and void), it shall be removed from his/her employee file upon application to the Employee Relations Consultant. Letters of counselling or instruction are non-disciplinary and will remain on file for twenty-four (24) months and are subject to the same conditions for removal as discharge letters outlined in the foregoing. [82] During her cross-examination Ms. Kowal acknowledged that the one day suspension to which her notes referred had not been “in the past year” at that time and, - 27 - further, that that suspension had “expired” by then. Union counsel put to her that she had taken the expired discipline in account in deciding on termination. She said she had not, that she had only mentioned it as part of his employment history. When it was put to her that when discipline “expired” it was removed from the employment history she answered that she had mentioned it but what she considered was the three day suspension, the two five day suspensions and the nine day suspension. It is not apparent whether the one day suspension was actually mentioned in the meeting itself, or only in these preliminary notes. There was no testimony from the experienced union representative who was present at the meeting that Ms. Kowal had said anything in that meeting that had given him the impression that she had taken the one day suspension into account in deciding on the severity of discipline for this incident. [83] Union counsel invited me to find that Ms. Kowal had violated Article 4.14(2). He argued that the appropriate remedy for such a breach was to treat the discharge as null and void, citing Tri-Krete Ltd. v. Labourer's International Union of North America, Local 506 (Holness Grievance), [2012] O.L.AA No. 302 (Trachuk), Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Local 304 v. Molson's Brewery (Ontario) Ltd., [1982] O.J. No. 1364, Rexdale Mobile Truck Wash (1981) Inc. and Brewery, General and Professional Workers' Union, 1995 CLB 13311 (McLean) and Spartech Color-Stratford and I.A.M.A.W (Markle), 2009 CLB 3745 (Rayner). Employer counsel argued that the evidence before me does not support a conclusion that the one day suspension was considered in determining the severity of the employer’s disciplinary response to the incident of November 7, 2013. She asked me to accept Ms. Kowal’s testimony in that respect. [84] In Molson’s Brewery (Ontario) Ltd., supra, the collective agreement provided that In the imposition of discipline, if an employee has not been formally disciplined for the same or a related offence for an interval of one year (two years in the case of suspension) his previous offences will not be referred to. But, in any event, discipline imposed will not be referred to after the expiry of three years from the date of discipline. - 28 - The employer had considered the grievor’s record outside the bounds set by this provision, but only (it said) to see whether it contained anything that mitigated the discharge decision at which it had otherwise arrived. An arbitrator to whom the discharge grievance was referred found the employer’s actions to be a technical breach of the provision, but concluded that the provision was directory rather than mandatory. The Divisional Court was persuaded otherwise, holding that the provision was mandatory. The court observed that It is unnecessary in this case to decide precisely what is meant by the word “referred” in that clause. … It must at least mean, however, that the company must not attach weight to the previous offences in reaching its decision with respect to discipline or discharge. It found that “the respondent company had no right under the collective agreement to discipline or discharge the grievor in circumstances in which it attached significance or weight to his prior discipline record,” and that such a decision was void. [85] The three awards cited by union counsel each took the same approach as the Divisional Court in Molson’s, holding that if a discharge decision relied on past discipline in violation of a collective agreement’s sunset provision (or the terms of an earlier settlement), then the discharge itself would be null and void. In doing so they rejected the “proportionate” approach adopted by other arbitrators, in which the employer’s having improperly considered prior discipline contrary to the collective agreement had led the arbitrators to determine what the appropriate discipline should have been, taking into account only the matters that ought to have been considered. [86] The threshold question here is whether the employer contravened Article 4.14(2) in deciding on discharge. If it did not, then it is unnecessary to determine whether the appropriate remedy for such a breach would be to treat the discharge as null and void, nor whether so treating it would or should leave the employer unable thereafter to properly impose discipline for the misconduct to which the void decision had responded. [87] Article 4.14(2) says that in certain circumstances “disciplinary documents” are to be made “null and void.” The article’s fifth bullet point says that “if an employee record has remained clear for a period of two (2) years following the expiry of the disciplinary - 29 - document (i.e., the date on which it became null and void), it shall be removed from his/her employee file upon application to the Employee Relations Consultant.” So a disciplinary document that has become “null and void” is regarded as “expired” but is not removed from the employee’s file and will not be removed except on application by the employee, and only then if the “employee record” has “remained clear” for a period of two years after the document expired. The parties evidently thought that a disciplinary document’s being in the employee’s file after it had “expired” could have some effect that an employee might want to neutralize, and they agreed that that effect, whatever it was, would only be neutralized by an employee who had had a clear record for two years since the document “expired.” I am not sure what the parties thought the effect of an “expired” document’s remaining in the file might be, but that conundrum need not be resolved here. [88] Implicit in union counsel’s argument is the submission that, although they did not expressly say so, the parties intended that once a disciplinary document had “expired” it would not be considered in determining discipline for any misconduct committed after the expiry. I assume, without deciding, that that is so for the purpose of my analysis. On that premise, and having regard to the court decision and awards relied upon, I conclude that the article would be breached if expired discipline is relied on to justify discipline greater than could otherwise be justified. It is not apparent that mere recollection or awareness of the expired discipline on the part of the decision maker, without more, would be a breach of Article 4.14(2). [89] Union counsel did not suggest that expiry of a disciplinary document under Article 4.14(2) retroactively invalidates or requires modification of the documentation of any other discipline that had properly taken the then unexpired prior discipline into account. For example, the grievor here received a three day suspension for the incidents of August 1 and 2, 2012, in part because he had previously received the then unexpired one day suspension. The union does not argue that giving weight to that three day suspension after the one day suspension had expired was itself a breach of Article 4.14(2). - 30 - [90] The threshold question, then, is whether in deciding how to respond to the incident of November 7, 2013 Ms. Kowal used the then expired one day suspension to justify a response more severe than it would have been if she had only considered the unexpired discipline. She says she did not. That is not hard to believe. Her focus, not surprisingly, seems to have been on the level to which the grievor’s prior discipline had progressed, not on where it had begun. I conclude that her decision making process did not violate Article 4.14(2). I turn to whether her decision was just. Was there cause for some discipline? [91] The events of November 7, 2013 required that the grievor make a series of decisions in which providing the best service for the passengers already on the bus had to be balanced against providing service for last minute arrivals. Waiting for them risked delaying the journeys of those already on the bus. He had to choose whether to wait for them without knowing how they might chose to pay their fares. [92] Once he chose to wait for the last minute arrivals he then had to decide whether to collect their fares while still at the platform or after getting underway. During closing argument employer counsel observed that some of the difficulty caused by K. B.’s inability to pay the full fare could have been avoided if he had collected the fares in the station. That reflects the clarity of hindsight. Collecting the fares at the platform would have further delayed the departure of the bus and might have led to more delay if further potential passengers arrived while the fares of the first last minute arrivals were being collected The alternative was to collect fares from the two who had not had a Presto card out after the bus was under way. The grievor had to choose without knowing how the two who did not have Presto cards out would pay their fares or even if they could. He evidently made the decision he did in the hope that the two who were not holding out Presto cards nevertheless had them. That was true in one case, and in that case the grievor’s decision to collect her fare after the bus was under way saved time for everyone on the bus. [93] When K. B. finally came forward she did not present a Presto card. She held out a handful of change. If she had had a Presto card it would not have been necessary to - 31 - stop and count the change, thereby delaying the bus. So the grievor asked her if she had a Presto card. Ms. Kowal was not critical of his asking that. She was critical of his then asking K. B. if she had bills. He said he did that for the same reason: if she had had a bill he might have been able to complete the fare transaction without stopping the bus. Ms. Kowal gave this explanation no credit. She evidently thought he was “coaxing” K. B. for bills because it would have been personally inconvenient for him to count the coins both then and at the end of his shift. She said it was bad customer service to ask a customer who offers to pay in currency in some form to ask if the customer could pay with some other form of currency. She expressed the opinion that customers in a retail environment do not expect such a question. There was no suggestion that these opinions were based on any special study, education or expertise. [94] I may not be the only consumer who is untroubled by having occasionally been asked by retail cashiers whether I had a bill smaller than the one tendered or exact change or a particular coin or coins, when it was evident that if I did that would make it easier for the cashier to complete the transaction. In any event, the issue is not one of personal experience or even expert evidence. The question is whether the grievor should have known that GO transit considered it wrong for a GO bus operator to discuss payment alternatives with a customer when that might make the fare purchase smoother for all concerned, including other passengers who had to await its completion. The grievor said he knew he was obliged to take coins of whatever denomination, but had never been told he could not ask a customer who presented coins if they had a bill or larger coins. There is no evidence before me that the view Ms. Kowal expressed on this point in her testimony is one that had been conveyed to drivers as the employer’s view, nor is her view so self-evident that the grievor ought to have known it was the employer’s view without being told. [95] I find that the grievor asked whether K. B. had bills for the same reason he asked whether she had a Presto card: in the hope that the fare transaction could be completed without delaying the trip for the other passengers in order to count a handful of apparently small change. It seems to me that making that enquiry was a reasonable - 32 - attempt to maximize customer service for all of the passengers in the bus. I do not accept that the substance of the enquiry made it cause for discipline. [96] I do, however, agree that it was wrong for the grievor to say “I’m going to bite my tongue” to a young passenger who was obviously embarrassed about having delayed the bus and having not had enough to pay the full fare. He was right to bite his tongue and not say what he was thinking. He was wrong to say he was biting his tongue, which clearly implied that he harboured negative thoughts about her that he was restraining himself from expressing. Indeed, it was the grievor’s testimony that his saying that was a way of telling K. B. that “some of the things you are doing are not great.” He was asked in cross-examination what things those were. He answered, and then volunteered that the things he had identified were “minor.” [97] I accept that the good customer service that GO expects its drivers to deliver would have involved his saying instead something that might reduce the tension inherent in the situation and alleviate the young passenger’s evident distress. The fact that the grievor inexplicably said what he did lends support for the concern that his words and conduct earlier in his exchange with K. B. were similarly imbued with an air of disapproval. That was also inconsistent with good customer service. This sort of gratuitous negativity in dealing with a vulnerable customer was clearly cause for discipline. Was discharge appropriate / Should some lesser penalty be substituted? [98] In isolation, what I find the grievor did wrong on this occasion would have been cause for a disciplinary warning, perhaps even a one day suspension given the evident vulnerability of the customer. Did it warrant discharge in light of his record? [99] I have determined that one of the five day suspensions that Ms. Kowal considered in coming to her own conclusion on that question was not properly part of the grievor’s record, and another was more severe than was appropriate. Employer counsel argued that a reduction of some discipline on a grievor’s pre-discharge record does not necessarily mean that discharge cannot or should not be sustained, citing Coca-Cola Bottling Company v. National Automobile, Aerospace, Transportation and - 33 - General Workers Union of Canada, 2006 CanLII 50489 (ON LA) (Surdykowski) and Teamsters, Local Union 419 and Riscon Services Ltd., c.o.b. as Garga (unreported, Cummings, January 12, 2010). I agree. The appropriateness of discharge for this incident must still be assessed on its merits, on the facts as I have found them. [100] As Arbitrator Surdykowski observed in the Coca-Cola award at paragraph 41, “It is well established that the ultimate penalty of discharge should only be imposed as a last resort, when there is no reasonable prospect that any lesser penalty is likely to be sufficient to both provide sufficient correction and deterrence, and protect the legitimate interests of the employer.” I agree with his added observation that there must be something more than a faint hope that a lesser penalty will be sufficient. Various mitigating factors, including the grievor’s seniority, will affect how much more than faint that hope must be for discharge to be considered excessive. [101] The discipline that was imposed for inappropriate passenger interaction about noise prior to February 2013 did not correct the grievor’s unwillingness to abide by management directions that he tolerate customer noise. That is clear because he did it again in February 2013. He was absent from work until May 2013, when he was disciplined for the February incident more severely than he had before. There were no further incidents of that sort between then and his discharge in late November of that year. Although this does not establish with certainty that discipline short of discharge can reform the grievor, it adds to the probability that it can. [102] There is no indication that the grievor has knowingly attempted to mislead the employer about his interactions with customers. Virtually every behaviour for which discipline has been upheld is behaviour that he admitted. His candor enhances the probability that the grievor can be corrected by further discipline. [103] The grievor had over 12 years seniority when he was discharged. That weighs in his favour in this analysis. His claim to a clean disciplinary record prior to 2012 does not, as it is neutralized by the requirements and implications of the sunset clause. - 34 - [104] I have already mentioned the grievor’s mid-December 2013 letter to the employer, in which he admitted to making mistakes, including his reactions to noise and his making the “bite my tongue” comment, and made detailed promises not to make those sorts of mistakes again. It seems unlikely that this letter was crafted for him by someone else. I am satisfied that it reflected his true feelings at the time. He said it was written for presentation at a grievance meeting, but neither of the parties suggests that that limited its use in these proceedings in any way. [105] The letter might have been more compelling if it had been delivered earlier, after either the interview of November 11 or immediately after the discharge meeting of November 28, 2013. Its significance is somewhat diminished by the fact that every time he was disciplined he had also promised to do better, although perhaps not as abjectly. Nevertheless, the letter’s content increases my estimate of the probability that the grievor has finally “got it” that he has to do what the employer has directed even if it differed from what he would otherwise have chosen to do. [106] On balance I am not persuaded that there is no reasonable prospect that any lesser penalty than discharge is likely to correct the grievor sufficiently. [107] I direct that the grievor be reinstated without loss of seniority, and that a three week suspension without pay commencing Monday, November 11, 2013 (when the grievor was suspended pending investigation) be substituted for the discharge on his record. Since the grievor’s letter of December 16, 2013 plays a part in my conclusion about the grievor’s potential for rehabilitation, and could not have influenced the employer’s own assessment before it received it, there will be no compensation for lost earnings during the period from the end of the suspension to the date the letter was delivered. Otherwise, the employer is to make the grievor whole for any loss that flowed from his having been discharged rather than disciplined as I have determined he should. Any determination of the losses to be compensated must, of course, take into account the obligation the grievor was under to mitigate them. - 35 - [108] I remain seised with any issue the parties cannot resolve themselves concerning the implementation of these directions. Dated at Toronto this 29th day of August 2014. Owen V. Gray, Vice-Chair