Was second disciplinary incident in row for employee
After his request for a vacation leave was denied, a Toronto Transit Commission (TTC) workcar operator phoned his supervisor and berated him, triggering his dismissal.
Laurence Dunphy had worked for the TTC since 1998 when on Feb. 28, 2016, he texted his supervisor, Jason Radeska, to request the next two days off (Feb. 28 and 29) under the single-day vacation (SDV) policy.
However, the request was refused for the second night as Dunphy had been booked for first-aid training.
(Dunphy previously requested training after twice refusing to work shifts due to his outdated training status.)
On Feb. 29, Dunphy again texted Radeska and said: “Maybe you guys should be more organized, don’t put it on me. You can’t give me one day’s notice for training.”
Dunphy was told repeatedly that the SDV request was still being denied. Early on March 2, Radeska texted Dunphy and said: “You have been marked as demand leave until further notice. Upon your return, you will need to produce medical documentation to substantiate your absence.”
Around 8 a.m. that morning, Dunphy phoned Radeska, who immediately opened a Microsoft Word page to document the phone call. Dunphy berated Radeska and called him a “moron” and he said, “You guys are all chicken shits” and management “hide(s) behind your white hats.”
Dunphy then told Radeska to come out to Whitby, Ont., where he lived so he could speak to him in person. Radeska refused and ended the conversation.
Dunphy testified he didn’t say anything about Whitby to Radeska because he was living with his mother in Oshawa, Ont., (which borders Whitby from the east) during the time of the conversation.
After he returned to work on March 8, Dunphy went into a meeting with management and he denied making any comments to Radeska that could be considered violent or threatening.
After another interview on March 10, Dunphy was fired for violating the TTC’s workplace violence policy and for breaking a condition of a 2015 incident not to engage in any further insubordination with supervisors.
The union, Amalgamated Transit Union (ATU), Local 113, grieved the termination and argued the comments were on the “low-side of the scale” in terms of being threatening.
Arbitrator John Stout disagreed and upheld the firing.
“If (Dunphy) had accepted some responsibility and demonstrated some insight, I may well have exercised my discretion to vary the penalty. However, (Dunphy) has continued to deny culpability and has not accepted any responsibility. He has failed to apologize for his misconduct and tried to justify his earlier misconduct,” said Stout.
“(Dunphy) has also failed to provide any evidence that would lead me to believe or give me confidence that he might be able to change his ways and refrain from uttering threats in the future. In these circumstances, I see no reason to exercise my jurisdiction to vary the penalty,” said Stout.
Dunphy’s earlier incident also convinced the arbitrator that similar outbursts might happen in the future.
“(Dunphy) was relieved of duties without pay on that occasion and not reinstated until a week later (five days without pay) and subject to conditions,” said Stout.
“(Dunphy) subsequently received sensitivity training and yet he still could not control his impulse to be insubordinate and utter intimidating threats towards his supervisor. In my view, (Dunphy’s) misconduct is indicative of someone who cannot be trusted to refrain from this sort of behaviour.”
Reference: Toronto Transit Commission and Amalgamated Transit Union, Local 113. John Stout — arbitrator. Steve Lavender for the employer. Dean Ardron, Carlo Di Giovanni for the employee. Sept. 23, 2018.
Laurence Dunphy had worked for the TTC since 1998 when on Feb. 28, 2016, he texted his supervisor, Jason Radeska, to request the next two days off (Feb. 28 and 29) under the single-day vacation (SDV) policy.
However, the request was refused for the second night as Dunphy had been booked for first-aid training.
(Dunphy previously requested training after twice refusing to work shifts due to his outdated training status.)
On Feb. 29, Dunphy again texted Radeska and said: “Maybe you guys should be more organized, don’t put it on me. You can’t give me one day’s notice for training.”
Dunphy was told repeatedly that the SDV request was still being denied. Early on March 2, Radeska texted Dunphy and said: “You have been marked as demand leave until further notice. Upon your return, you will need to produce medical documentation to substantiate your absence.”
Around 8 a.m. that morning, Dunphy phoned Radeska, who immediately opened a Microsoft Word page to document the phone call. Dunphy berated Radeska and called him a “moron” and he said, “You guys are all chicken shits” and management “hide(s) behind your white hats.”
Dunphy then told Radeska to come out to Whitby, Ont., where he lived so he could speak to him in person. Radeska refused and ended the conversation.
Dunphy testified he didn’t say anything about Whitby to Radeska because he was living with his mother in Oshawa, Ont., (which borders Whitby from the east) during the time of the conversation.
After he returned to work on March 8, Dunphy went into a meeting with management and he denied making any comments to Radeska that could be considered violent or threatening.
After another interview on March 10, Dunphy was fired for violating the TTC’s workplace violence policy and for breaking a condition of a 2015 incident not to engage in any further insubordination with supervisors.
The union, Amalgamated Transit Union (ATU), Local 113, grieved the termination and argued the comments were on the “low-side of the scale” in terms of being threatening.
Arbitrator John Stout disagreed and upheld the firing.
“If (Dunphy) had accepted some responsibility and demonstrated some insight, I may well have exercised my discretion to vary the penalty. However, (Dunphy) has continued to deny culpability and has not accepted any responsibility. He has failed to apologize for his misconduct and tried to justify his earlier misconduct,” said Stout.
“(Dunphy) has also failed to provide any evidence that would lead me to believe or give me confidence that he might be able to change his ways and refrain from uttering threats in the future. In these circumstances, I see no reason to exercise my jurisdiction to vary the penalty,” said Stout.
Dunphy’s earlier incident also convinced the arbitrator that similar outbursts might happen in the future.
“(Dunphy) was relieved of duties without pay on that occasion and not reinstated until a week later (five days without pay) and subject to conditions,” said Stout.
“(Dunphy) subsequently received sensitivity training and yet he still could not control his impulse to be insubordinate and utter intimidating threats towards his supervisor. In my view, (Dunphy’s) misconduct is indicative of someone who cannot be trusted to refrain from this sort of behaviour.”
Reference: Toronto Transit Commission and Amalgamated Transit Union, Local 113. John Stout — arbitrator. Steve Lavender for the employer. Dean Ardron, Carlo Di Giovanni for the employee. Sept. 23, 2018.
