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HomeMy WebLinkAbout2004-1459.Sharpe.05-12-14 Decision Crown Employees Commission de Nj Grievance Settlement reglement des griefs Board des employes de la Couronne ~ Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2004-1459 Umon# G-68-04BO IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Amalgamated TransIt Umon - Local 1587 (Sharpe) Union - and - The Crown In RIght of Ontano (Greater Toronto TransIt Authonty - GO TransIt) Employer BEFORE Barry B FIsher Vice-Chair FOR THE UNION Ian Fell ows Green & Chercover Barnsters and SOlICItorS FOR THE EMPLOYER Glenn ChnstIe Hicks Morley HamIlton Stewart Stone LLP Barnsters and SOlICItorS HEARING January 28 October 18 & 21 2005 2 DeCISIon ThIS IS a dIscharge gnevance The gnevor was termInated for wntIng a threatemng letter to a female co-worker The Umon does not dIspute that dIscIplIne IS warranted, only that dIscharge IS too harsh a penalty As an edItonal note, I have referred to the female co-worker to whom the threatemng note was sent as Ms X as there IS no reason to publIcIze her real name The relevant facts are as follows 1 The gnevor commenced employment wIth the TTC on October 21 1988 and was transferred to GO TransIt under BIll 125 2 At the tIme of hIS dIscharge on July 9 2004 he was employed as a bus dnver He was 51 years old. 3 In March of 2003 the gnevor was dIscIplIned for InsubordInatIOn. The dIscIplIne letter read as follows On Thursday March 6 2003 you arrived at the Hamilton GO Centre at approximately 15 50 hrs. You stormed into the Supervisor s office slammed the door behind you and ordered Supervisor N off the phone You proceeded to verbally abuse her and then threyt, money run reports changer change purse and I.D badge on the desk beside her and told Supervisor N you have had enough of this place and then left. Your actions yt,ere intimidating threatening and insubordinate andyt,ill not be tolerated Based upon your actions and subsequent abandonment of the yt,ork place your employment is terminated, effective immediately 4 The gnevor filed a gnevance over thIS dIscharge The partIes entered Into Minutes of Settlement dated March 18 2003 whIch provIded as follows 1 You yt,ill provide further medical documentation from your oyt,n physician confirming your medical condition and prognosis. 2 You yt, ill attend at a physician of GO Transits choice for a second opinion. 3 You yt, ill be reinstated as an employee and placed on sick leave effective March 17 2003 4 The period from March 7 to 16 yt, ill be considered a suspension yt, ithout pay Note ThIS resulted In a suspenSIOn of 6 workIng days 5 I was told by Umon counsel In hIS opemng that the nature of the medIcal condItIOn was psychIatnc and that the gnevor had a hIStOry of depressIOn for a long tIme I was also advIsed In the opemng that he had been In psychotherapy for a long tIme I should note however that neIther sIde chose to lead any medIcal eVIdence at all as to the gnevor's psychIatnc condItIOn at any of 3 the relevant tIme, thus I had no medIcal eVIdence to consIder In thIS case In fact the Umon stIpulated In ItS opemng that the gnevor IS not pleadIng that the psychIatnc condItIOn of the gnevor explaIns or excuses hIS behavIOr nor dId It cause the IncIdent that led to hIS termInatIOn, however the Umon pleads that hIS medIcal condItIOn IS a relevant factor In aSseSSIng whether the penalty of termInatIOn was appropnate 6 WhIle off on sIck leave the GO TransIt doctor advIsed the Mimstry of TransportatIOn that In hIS OpInIOn the gnevor was not fit to dnve at all His lIcense was then suspended. He was able to get back hIS "G" lIcense In December 2003 but dId not get back hIS Class "B" lIcense untIl June 2004 7 The gnevor returned from sIck leave to non bus dnvIng dutIes about SIX months later On May 28 2004 he returned to hIS bus dnver dutIes at the HamIlton termInal 8 On Fnday July 2, 2004 after only havIng worked 25 dnver shIfts SInce hIS suspensIOn, the gnevor commItted the act whIch led to hIS termInatIOn. He started hIS ShIft at the Barton Street garage at around mId-afternoon. When he went Into the bus to whIch he was assIgned, he found that there was garbage InsIde the bus that the prevIOUS dnver Ms X, had not cleaned up He proceeded to remove the garbage whIch he said amounted to several armfuls He then drove the now lItter free bus to the HamIlton raIlway statIOn, whIch generally takes about 20 mInutes In traffic He proceeded to the dnvers' room, took some paper from the table, borrowed a pen from a co-worker and wrote the folloWIng note Ms. X If you EVER leave me a bus in the same state as today s (FRI) again, I II see you live to regret it. A friendly yt,arningfrom afelloyt, union-member Ken Sharpe Another dnver saw the gnevor wnte the note That dnver said to the gnevor "You could get yourself Into trouble wntIng that note" The gnevor then put the letter In an envelope, put the name of Ms X on the envelope and posted In up on the dnvers' board, whIch IS In plaIn VIew Dunng the course of that day he returned to the HamIlton termInal several tImes He made no attempt to remove the note Furthermore he was off all weekend and at no tIme dId he come to the HamIlton termInal to remove the note before Ms X saw It. On cross-exammatIOn when he was asked whether he felt It was wrong to wnte thIS letter at the tIme he wrote It, he said that he felt IS was a nsky thIng to do on hIS part. 9 On Monday July 5 2004 Ms X arrIved at the HamIlton termInal and went to the dnvers' room for a layover at about 7 45 am. Another dnver told her that there was an envelope on the notIce board for her She took the envelope and read the letter InsIde Upon readIng the letter she was "very taken aback" and "In a state of dIsbelIef' and "physIcally shaken." Two other dnvers who were In the room at the same tIme also read the letter She had a physIcal reactIOn to the letter In that her body broke out In hIves She expressed fear of the gnevor She spoke to Umon Stewart about thIS matter and he qUIte properly told her to ImmedIately report It to management, whIch she dId that same day The supervIsor who first heard the story from Ms X testIfied that 4 Ms X was very upset, shakIng, pale and cryIng. She testIfied that the effects of thIS letter have lasted to the present. F or the next few days management arranged for her to be escorted to her bus and her car She also reported the IncIdent to the polIce but asked that they not contact the gnevor She testIfied that she felt especIally ternfied about the note because of the fact that It came from the gnevor who she knew had been Involved In "prevIOus IncIdents" She testIfied that not havIng to worry about encountenng the gnevor at work has made It much better but that she IS stIll not over the IncIdent. Although she generally works out the HamIlton termInal, she often works extra days throughout the system. 10 On July 6 2004 SupervIsor Rae Anne NestorvIch called the gnevor on the phone and said that she wanted to see hIm The gnevor's response was to chuckle and say "I guess I know what thIS IS about." When the gnevor arnved at the meetIng the Umon Stewart, Danny Harns and SupervIsor George SubrowskI was also present. As soon as the gnevor entered the meetIng and saw that the SupervIsor had the letter In her hands, the gnevor said In a loud VOIce "I fuckIng well knew It. I knew she would fuckIng well turn thIS around and make It my fault Instead of dealIng wIth the dIrty bus" He also said "You don't know what I meant by the threat, It could have been that I could leave a dIrty bus for Ms x." The gnevor also expressed hIS VIew that leavIng dIrty buses was a form of harassment. He was suspended wIthout pay at the end of the meetIng. 11 On July 9 2004 the gnevor and hIS Umon Steward attended a meetIng wIth a number of semor managers, IncludIng Mr FInnerty Manager Bus OperatIOns The gnevor kept on talkIng about dIrty buses and management tned to talk about sendIng threatemng letters Later that day the gnevor was termInated. 12 On the mormng of January 28 2005 Just before the first day of thIS heanng was to commence the gnevor through Umon counsel delIvered an "apology" letter to Ms X, whIch read as follows 'Dear Ms X and famIh Januan 27 2005 I am wntmg to vou to express m, smcere heartfelt regret for the angst that I caused vou b, leavmg such a note for vou m our workplace M, purpose m domg so was to create an mCIdent whIch would force the Dmon and Management mto havmg dIscussIOns whIch would ultImateh lead to puttmg an end to a longstandmg workmg condItIOn whIch I beheved (and stIll do) IS mJunous to mterpersonal relatIOnshIps amongst emplovees, and IS detnmental to our Image as professIOnals m the eves of the travehng pubhc, and the quaht, of servIce WIth whIch we provIde them However the ends do not alwavs JUStIf\ the means, and even though there was never an, mtent on m, part to do vou personal harm, eIther to vour person or m an, other wa, the words I chose m pursmt OfthIS goal were clearh mappropnate I also understand that there has probabh been a lot of gOSSIp about me m the workplace about events m m, personal hfe gOSSIp whIch If taken to be true would have heIghtened vour concern. 5 In m, defence I can onh sa, that m, Judgement of what would have been an appropnate wa, to proceed ma, have been Impaired b, the enormous stram I was undergomg at havmg been through a long senes of nerve-wrackmg tests for cancer and havmg been posItIveh dIagnosed WIth prostate cancer onh to be told that the earlIest avaIlable date for surgen to get It out of me was SIX months away Wh, IS It that It has taken so long for you to receIved thIS apology? I and m, fanuh have been through a two year mghtmare as a result of GO TransIt s actIOns, and I have been wrongh placmg some of the responsibIlIt, for our suffenng on your havmg gone to Management WIth m, note mstead of to the Dmon, as I had hoped you would do I also know that there wIll be a strong temptatIOn for you to belIeve that thIS apology IS Just a plo, to be used m m, upcommg Labour Board arbItratIOn. It IS not. In the end, what I dId to you was lust plam wron2:, and not onh do I bear you no ill will, Ms X, I beg your forgIveness Once agam, m, smcerest apologIes to you and your famih Yours smcereh Ken Sharpe The gnevor testIfied extensIvely about why he sent the threatemng letter He first told of an InCIdent that occurred about four years before when he first complaIned to management about beIng left WIth dIrty buses The supervIsor to whom he complaIned told the other dnvers that the gnevor had complaIned about beIng left WIth dIrty buses and from that pOInt on he felt that other dnvers would IntentIOnally leave buses for hIm In a very messy state The other dnvers gave hIm the cold shoulder and treated hIm lIke a "squealer" He dId not feel that there was any pOInt approachIng the Umon as he had heard that the Umon Steward was the worst offender of them all On another occaSIOn, some years ago he was told by another dnver that a thIrd dnver had IntentIOnally dIrtIed the bus before gIVIng It over to the gnevor When the gnevor was off on SIck leave follOWIng the sIx-day suspensIOn the GO TransIt doctor filed a report WIth the Mimstry of TransportatIOn whIch caused hIS dnvIng lIcense to be revoked. It took the gnevor many months to get back hIS lIcense From thIS InCIdent he felt and contInues to feel a deep sense of InJustIce because of the actIOns of hIS employer The gnevor testIfied that the reason he wrote the threatemng letter to Ms X was because he thought that Ms X would take It to the Umon who In turn would SIt down WIth the Employer and finally deal WIth the Issue as to whose responsIbIlIty It was to clean up the Intenor of a bus after the shIft change He IndIcated that he dId not complaIn to management dIrectly because of what happened to hIm years ago when he dId exactly that. He Said that he dId not wnte the letter Just for hImself, but also on behalf of other people He testIfied that he wanted to create eVIdence of InfightIng so that the Umon would take thIS matter senously and do somethIng about thIS Issue He sIgned the letter WIth hIS own name so that everybody not Just Ms X, would know that he was the one complaInIng about dIrty buses He wanted to bnng attentIOn to what he belIeved was the senous problem of dIrty buses He IndIcated that he never had any IntentIOn to cause harm to Ms X and regrets that she felt IntImIdated by the letter He Said that he would have 6 delIvered the apology letter earlIer had he known how upset Ms X had been, whIch he only learned when she testIfied on the first day of the heanng. However thIS IS hard to understand SInce he delIvered the apology letter before Ms X testIfied. When he was asked what he had learnt from thIS epIsode he stated that he had learnt that these matters should have been handled through proper channels When asked to explaIn thIS he said that he should have contacted the Umon Stewart and If necessary the Umon lawyer In other words, If he felt that the collectIve agreement was not beIng complIed wIth, In that he should not have to clean up someone else's bus, then he go through the gnevance procedure not send threatemng letters However on cross eXamInatIOn when he was asked whether he had learnt anythIng after the SIX day suspenSIOn, he replIed that he had wntten the letter to Ms X out of frustratIOn because no one was wIllIng do anythIng about the dIrty bus Issue He admItted that In the four years between the ImtIal complaInt to hIS supervIsor about dIrty buses and hIS letter to Ms X, he never raised the Issue of dIrty buses wIth anyone With respect to the Impact that thIS termInatIOn has had on the gnevor he has not been able to get steady dnvIng work because hIS dnver's abstract shows a penod of suspenSIOn. In addItIOn he has been unable to use GO TransIt as a reference He has had sporadIc work In factones and a penod of low wage employment at a local Tim Horton's, whIch he qUIt after havIng a senes of conflIcts WIth hIS boss His wIfe has used up her RRSP saVIngs and they are both emotIOnally dIstraught at the thought of bankruptcy and ofloSIng theIr house In terms of lookIng for other work he IS qualIfied to dnve certaIn trucks but not tractor- traIlers He has applIed to the TTC and regIstered wIth certaIn truckIng agents and headhunters that find dnvIng Jobs He dId not apply to any other transIt authontIes, even the ones In hIS ImmedIate area. Decision The only Issue IS whether the penalty of termInatIOn was exceSSIve The aggravatIng factors are as follows . He had been prevIOusly dIscIplIned by way of a sIx-day suspensIOn for sImIlar behavIOr of a threatemng manner Although there was a calendar penod of 16 months between the IncIdent, In terms of days In whIch he actually performed dnvIng dutIes, the penod was only 25 ShIftS, a very short penod of tIme . The act of wntIng and delIvenng the letter was completely premedItated and not spontaneous at all He was warned by hIS co-worker to not send the letter he hImself knew that It could get hIm Into trouble and he had ample opportumty to take the letter off the dnvers' board after he had posted It but before Ms X would receIve It. . Although he may have not Intended to actually physIcally harm Ms X. the clear purpose of the letter was to IntImIdate Ms X Into worryIng about possIble future harm that could come her way The gnevor thought that Ms X would take her concerns to the Umon, however she qUIte properly took It to both her Umon and to Management. IntentIOnally creatIng a sense of fear In another IS as senous as actually caUSIng the other person 7 physIcal harm No one In thIS day and age should have to "look over theIr shoulder" whIle at work because they fear an attack from a co-worker . When first approached about thIS problem he dId not apologIze to Ms X, In fact all he seemed to care about at that tIme was the Issue of dIrty buses He dId not seem to "get It" that the Issue was not dIrty buses but hIS threatemng behavIOr His later apology IS at best too late and half-hearted. Most of the letter deals wIth hIS reasons for sendIng the threatemng letter be It the Issue of dIrty buses, hIS health, and InJustIce at the hands of the employer Most remarkably he remarks In the first paragraph that the Issue of dIrty buses is still an issue that he belIeves is injurious to interpersonal relationships amongst employees, and is detrimental to our image as professionals in the eyes of the traveling public and the quality of the service that lj, e provide them. In other words, even after beIng termInated and on the eve of the arbItratIOn Itself, he stIll IS vIrtually obsessed wIth thIS Issue of dIrty buses and apparently stIll belIeves thIS matter needs to be addressed. In other words he seems to stIll thInk that hIS behavIOr In sendIng the letter to Ms X IS somehow JustIfied because It was for a greater good, I e the fight agaInst dIrty buses ThIS creates a real concern that If he were to be returned to the workplace that he would properly handle the sItuatIOn the next tIme thIngs do not go hIS way or he IS left wIth a dIrty bus MitIgatIng Factors . He has a long servIce, almost 16 years . The loss of hIS Job has led to dramatIc negatIve changes to hIS financIal and famIly lIfe . The temporary suspensIOn of hIS dnver's lIcense on hIS dnver's abstract has made It dIfficult for hIm to find comparable dnvIng employment, whIch IS hIS best chance of earmng a lIvIng comparable to what he has lost at GO TranSIt. . He has expressed some remorse for hIS actIOns The Umon has IndIcated that they belIeve that thIS IS an appropnate case for a last chance agreement, whIch would contaIn the folloWIng condItIOns . Before returmng to dutIes he would be reqUIred to undergo a psychIatnc assessment to determIne hIS abIlIty to deal wIth anger and conflIct. He would be reqUIred to partIcIpate In any treatment prescnbed by that assessment. . Upon hIS return to work, he would not be assIgned to the same area as Ms X for some penod of tIme . No back pay would be awarded. The Umon's approach has an InItIal appeal as arbItrators tend to gIve last chance agreements a try even where the behavIOr IS threatemng, where there IS a medIcal basIs for belIevIng that the gnevor wIll not repeat the behavIOr The folloWIng cases Illustrate thIS trend. In OSF Inc and USWA Local 5338 (Keefe) 89 L.A.C (lh) 52 ArbItrator KIrkwood dealt wIth a gnevor wIth a bad record (two suspenSIOns In the last 12 months both for abusIve or vIOlent behavIOr) who verbally threatened the Plant Supenntendent. The gnevor had only 2 5 years servIce and was found to have acted In the heat of the moment. The arbItrator also found It 8 Important that the gnevor who was already In an anger control program as a result of the prevIOUS IncIdent, recogmzed that he stIll had anger control Issues and was prepared to contInue In that program The ArbItrator reInstated hIm wIth no back pay on the condItIOn that he contInue In the anger management program, that he must control hIS temper at all tImes and that any "unwarranted outburst wIll not be tolerated." In Ajax Pickering Transit Authority and CUPE Local 129-01(Garcia) 123 L.A.C (4th) 51 ArbItrator Craven was dealIng wIth a 11 year employee who after years of argUIng both wIth hIS umon and the employer about hIS status as a casual employee, said In a phone call to management employee "What do I have to do to be heard around here come In and shoot someone')" He had a clean dIscIplIne record. No medIcal eVIdence was led however the arbItrator reInstated hIm wIth no back pay condItIOnal upon the gnevor first undergoIng a psychologIcal assessment of the potentIal nsk of reInstatement and upon reCeIVIng a medIcal clearance from that medIcal specIalIst. ThIS request came from the employer In theIr submIssIOns In Timberjack Inc v Glass Molders Pottery Plastics and Allied Workers Int. Union Local 446 ( Sltan )[2000J OL.A.A. 829 ArbItrator Venty dealt wIth a 275 year employee wIth a clean record who verbally threatened to bnng a gun Into the workplace and do physIcal harm to a supervIsor and other employees He was reInstated after a mne month suspenSIOn. In Regional Municipality ofOtt([l1,a-Carleton and CUPE Local 50344 L.A.C (4th) 95 ArbItrator Stewart dealt wIth a 21 year employee wIth a clean record who uttered verbal threats of physIcal vIOlence InvolvIng the use of a gun agaInst employee to a dIfferent employee In thIS case the Umon led extensIve medIcal eVIdence from the gnevor's psychIatnst who testIfied that he had a low nsk of repeatIng the behavIOr The gnevor was fully partIcIpatIng In hIS treatment and was on a WaitIng lIst for a course In anger management. The gnevor was reInstated wIth no back pay In Toronto Western Hospital and CUPE Local 1744 6 L.A.C (/h) 150 ArbItrator Mitchmck had a sItuatIOn where a five-year employee was first gIven a five-day suspenSIOn for a verbal threat that he made to hIS supervIsor In an emotIOnal outburst. Then a few days later whIle he was beIng handed the suspenSIOn letter he agaIn verbally threatened another supervIsor He was then termInated. He gave a wntten apology a few days later He had no formal dIscIplIne record other than the two IncIdents His dIscharge was substItuted wIth a four-month suspenSIOn. It should be noted that thIS case was decIded In 1989 well before the well known IncIdents of workplace vIOlence that have occurred In recent years, lIke the murders at OC Transpo In OSF Inc v USW A Local 5338 63 C.L.A.S. 290 ArbItrator Murray had a case InvolvIng a verbal outburst threatemng another employee wIth gun vIOlence He upheld the dIscharge even though there was techmcally a clean record. The ArbItrator found on the eVIdence that there was a pattern of sImIlar mIsconduct and that the gnevor contInued to have a grudge agaInst the co- worker whIch would affect hIS abIlIty to return to the workplace In Metropolitan Hotel and HERE Local 75 (Bellan) 124 L.A.C (/h) 1 ArbItrator Spnngate dealt wIth a 8 year employee wIth a clean record who made threats to the DIrector of Human Resources and her famIly whIle at an OLRB meetIng and In front of many wItnesses, IncludIng lawyers for both the employer and the umon. Pnor to dIscharge the employer arranged for a psychIatnc assessment of the gnevor whIch the gnevor attended. The psychIatnst found that dId not belIeve that the gnevor would be a potentIal danger to the safety of the guests or other employees At a subsequent meetIng, the gnevor demed that he had made the threats, and said 9 that hIS comments were mIsunderstood due to EnglIsh beIng hIS second language ArbItrator Spnngate In upholdIng the dIscharge made the folloWIng comments at pages 26 to 28 The partIes referred to a number of awards where gnevors were remstated (or not dIscharged) despIte makmg threats to a supervIsor or a fellow employee Those cases addressed consIderatIOns such as whether there was actual physIcal contact, whether a threat was likeh to be carned out, whether the person bemg threatened took It senoush an, expressIOns of remorse and also whether the threat was due to an employee s mental Illness All of these consIderatIOns contmue to remam relevant. Unfortunateh another conSIderatIOn IS the Impact of mcreased vIOlence m soclet, generalh and partlcularh m workplaces With It has come greater concern for both the possiblht, of actual vIOlence followmg a threat as well as the Impact of a threat on the person bemg threatened. There IS also a heIghtened recogmtIOn of an employer s obhgatIOn to take steps to protect ItS staff from potential vIOlence and from threats of vIOlence One recent case not referred to b, eIther of the partIes, that artIculated some of these concerns was Re McCain Foods (Canada) and U F C W Lac 114P 3 (Ellis) (2002) 107 L.A.C (4th) 193 (C G SImmons) In that case an employee mdlcated to two other employees that If anythmg happened to hIm and hIS Job he would shoot a partIcular supervIsor ArbItrator SImmons upheld the employee s dIscharge In domg so he noted at pp 209-10 that, 'When Galco was decIded m 1974 the world had not wItnessed the Lepme shootmgs m Montreal, nor the employee shootmgs at the Ottawa Bus Termmal nor mdeed, had shootmgs m schools across North Amenca become as frequent as the, have dunng the past decade As alread, noted, the gnevor s underlymg concerns related to comments made to hIm b, Mr Aliheldan some 11 months before Ms Came, spent conSIderable tIme seekmg to address the gnevor s concerns and to resolve the dIspute between hIm and Mr Aliheldan The gnevor was dIssatIsfied WIth the outcome of her efforts One wa, he demonstrated thIS was b, cuttmg hIS own wnst after recelvmg a letter from Ms Came, that dlsappomted hIm He also sought to address hIS concerns b, wa, of a gnevance and a related OLRB complamt agamst the umon. Ms Came, attended at the OLRB m her capaclt, as the employer s DIrector of Human Resources As a result mereh of her attendance and wIthout an, provocatIOn, the gnevor threatened to get her and her fanuh He dId so m a manner that caused Ms Came, to fear for the safet, of herself and her chIldren. A subsequent psychIatnc assessment requested b, the employer determmed that the gnevor had not been suffenng from an, dIagnosable pSYChlatnc Illness The gnevor S mIsconduct was compounded b, the fact he dId not acknowledge that he had done anythmg wrong ThIS does not mstil confidence that he would not repeat hIS conduct should he be remstated and agam became dlsappomted b, work-related events The above conSIderatIOns lead me to conclude that the employer had Just case to dIscharge the gnevor In thIS case all I know about the gnevor's psychIatnc background IS that In the Umon's opemng I was told that he had a hIStOry of depressIOn for a long tIme I was also advIsed In the opemng that he had been In psychotherapy for a long tIme However no medIcal eVIdence as to hIS present mental health was led therefore I have no way of knOWIng whether a further psychIatnc evaluatIOn would do any good. It was certaInly open for the Umon to lead eVIdence from hIS treatIng psychIatnst or physIcIan as to the gnevor's lIkelIhood of future threatemng behaVIOr however no such eVIdence was led. I am therefore unable to as requested by the Umon, take Into account hIS apparent medIcal background In asseSSIng whether he would make a 10 good candIdate for reInstatement. Nor IS It appropnate that on my own volItIOn I order such an evaluatIOn where one was not requested by the Employer (as In the MetropolItan Hotel case and the AJax PIckenng case) nor where the Umon chose not to lead eVIdence on thIS Issue (unlIke In Ottawa Carleton where the Umon led such eVIdence) In an adversanal system of arbItratIOn, the partIes, not the arbItrator decIdes what eVIdence wIll be led at the heanng and the arbItrator makes hIS decIsIOn based solely on that eVIdence For thIS reason the Umon's proposal for a last chance agreement IS not appropnate I concur wIth ArbItrator Spnngate's comments on how we should now VIew vIOlence and threats of vIOlence In the workplace In all the cases quoted above the threats were verbal and In most cases were In the nature of Intemperate outbursts In thIS case, the gnevor's threat was In wntIng, therefore Intended by the gnevor to have a more lastIng affect than mere words that dIsappear after they are spoken. ThIS was premedItated. He wrote It out and posted the envelope on the board for days He had many opportumtIes to change hIS mInd and go back and pull It off the wall We have all said stupId and hurtful thIngs to other people, and then ImmedIately wIsh we could take back our words The gnevor could have taken back hIS threatemng words anytIme between Fnday and Monday mormng, but he chose not to His apology was not untIl the mormng of the heanng. That means Ms X lIved wIth hIS threat of vIOlence for over SIX months Even then hIS apology was mostly hIS ratIOnale for hIS behavIOr not a true understandIng of the paIn and fear that he has put Ms X through. By hIS own words the gnevor admIts he used Ms X to achIeve an ultenor purpose, that IS to make the Umon take hIS dIrty bus Issue senously and deal wIth thIS Issue WIth management. In essence he was prepared to ternfy a completely Innocent co-worker In order to try to get hIS dIrty bus Issue before the employer ThIS Issue whIch the gnevor admItted he had done nothIng about for over four years, over whIch he had never even tned to file a gnevance over was so Important to hIm that he was prepared to do a "nsky" thIng by sendIng that letter wIthout the slIghtest regard for the feelIngs of the recIpIent. In most of the cases referred to above where reInstatement was allowed, the gnevor had a clean record. ThIS gnevor dId not. A mere 16 months before (dunng whIch he was off on sIck leave for a consIderable penod of tIme) he had commItted a sImIlar but less senous offence agaInst hIS supervIsor ProgressIve dIscIplIne was tned but dId not succeed. 11 For all of the reasons above, I find that termInatIOn was not an exceSSIve response to the gnevor's mIsconduct. The gnevance IS therefore dIsmIssed. IS 14th day of December 2005