Canada: T.T.See Ya Later! Arbitrator Upholds Termination Of Fare Collector For Uttering Threats

Last Updated: March 31 2017
Article by Michael MacLellan

A long-term Toronto Transit Commission employee who was fired for uttering death threats has lost his bid for reinstatement.  We wish this wasn't so news-worthy, but it really is.

The Grievor, Mark Davis, was a 54 year old fare collector with over 25 years of service as a member of the Amalgamated Transit Union who was terminated for just cause.  Davis confided to a co-worker, Ms. Bethune, that he would be "the one" to kill TTC management employees, including three that he identified by name.  The threats were apparently prompted by the fact that he had to attend sensitivity training the day before.  Ironically, the sensitivity training was a condition of his reinstatement to work stemming from prior discipline for flipping off a rider.

Ms. Bethune struggled with her decision to report Davis' comments to management because, as she put it, "people don't tell on other people" at the TTC, but ultimately was concerned enough to complete an incident report.  The TTC investigated and eventually terminated Davis from employment.  The Union filed a grievance on Davis' behalf challenging the termination as unjust. 

The arbitrator determined that this case would largely be decided on the basis of credibility between Mr. Davis and Ms. Bethune.  The arbitrator found that Ms. Bethune's evidence was more reliable than the grievor's.  For his part, Davis denied that he made any such threats, and instead insisted that his co-worker was "put up to this" by one of the managers he threatened by name (also a woman), because "they have a women's group at work and they're all connected." 

Having found that Davis uttered the threats, the arbitrator then had to determine whether the TTC was justified in terminating him, or whether some lesser penalty was appropriate in the circumstances.  The arbitrator reviewed certain factors in his decision, stating:

... workplace violence, especially given its wide definition in the  Occupational Health and Safety Act, does not automatically warrant the upholding of a discharge.  As in all disciplinary cases ... the arbitrator must consider all the circumstances, including the nature of the violence, its context, the grievor's seniority and disciplinary history, the impact of the job loss on the grievor, and, above all, the prospects that the employment relationship can be rehabilitated and survive the grievor's reinstatement. 

The arbitrator determined that the aggravating factors of this case outweighed the mitigating factors of Davis' lengthy tenure and financial hardship following termination.  In particular, the arbitrator was persuaded by the facts that Davis never acknowledged or admitted to making the threats, did not apologize for his behaviour, did not have a clean disciplinary record, appeared to have a problem with women in the workplace, and most troubling, that he made the threats only one day after having completed mandatory sensitivity training.  Clearly the training that was meant to be rehabilitative, had no positive impact on the grievor.

As a result, the grievance was dismissed and the termination was upheld.

A key factor in any discipline case will be the prospects for reintegration into the workplace if the employee is reinstated.  That factor takes on added importance in cases involving workplace violence, as demonstrated by the arbitrator's comments in relation to a forensic psychologist's evidence that Davis was at low-risk of committing physical violence:

However, there are different considerations in the employment context compared with criminal or mental health situations, where release into the general society is the question in the assessment.  In deciding on reinstatement to employment, the issue is whether a grievor such as Mr. Davis is to be put back into a situation where fellow employees have no choice but to interact with him.  As such, the impact of threats on those other employees must be an important consideration.  While I agree that Mr. Davis will likely never engage in physical violence, the three managers who were targets of his threats, as well as Ms. Bethune and all his other co-workers, deserve – and in fact have a legal right to – a workplace where they do not have to worry about the kind of threats made by Mr. Davis, even if they were idle.

This decision helps us predict what level of discipline may be justified in different cases involving workplace violence.  Where idle threats of violence are made by an employee with long service, a clean record of discipline, and who is likely to integrate back into the workplace cohesively, termination may not be justified.  Instances of actual violence, or where employees will suffer from having the employee at work, are less likely to warrant any discipline less than termination.

Workplace violence is still an emerging legal topic, and there are very few cut-and-dry instances where the appropriate level of discipline is obvious.  The professionals at CCPartners have extensive experience with advising employers on discipline for workplace violence, including which factors to consider, and most importantly how to take diligent steps to ensure workplace safety.  Click here for a list of our team members that can assist with all your labour relations questions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Michael MacLellan
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions