‘Significant flaws’ in operator’s testimony: Arbitrator
After a heated discussion between a passenger and a Toronto Transit Commission (TTC) bus operator, the door was roughly closed on her arm and leg.
Mitchell McDonald was hired in July 2013 as a transit operator but on Oct. 15, 2017, he was driving the Sheppard East bus in eastern Toronto when he pulled into a station around 5 p.m. Natasha Rankine was the last in line of a number of passengers who waited to board the bus.
When Rankine attempted to get onto the bus, the door abruptly shut, trapping her arm and leg. She was let go after he opened the door.
The following day, Rankine submitted a handwritten statement to the TTC about the incident: “He then released me from the doors and said, ‘Do you remember the time when your boyfriend or guy friend swore at me?’ In June of this year, my boyfriend at the time and I were riding the bus. My friend was topless. As we were exiting, the driver informed us that he (my friend) couldn’t be on the bus without a T-shirt. They had an exchange of words and that was that.”
On Oct. 16, manager Adnan Molvi, asked McDonald for a meeting to discuss the incident.
McDonald later filled out an occurrence form stating: “Black woman got her front foot stuck in the door as it was closing. I apologized to her, let her know the door was closing already, and said sorry again. I also let her know that I was cold, which was why I closed the door.”
McDonald also said he left the station after the incident with an empty bus after Rankine began swearing at him.
On Oct. 20, McDonald was terminated. At the time, he was subject to a last-chance agreement (LCA) stemming from a previous negative interaction with a passenger in 2017.
The Amalgamated Transit Union (ATU), Local 113, grieved the firing.
It argued that because McDonald was not offered union representation during the first meeting, the termination should be voided.
Arbitrator Lorne Slotnick disagreed and dismissed the grievance.
“I find that McDonald deliberately closed the bus doors while Rankine was boarding, in reprisal for the earlier encounter and in violation of his last-chance agreement. I further find that he was not improperly denied union representation at the Oct. 16 meeting.”
As well, the evidence of Rankine was more credible than that of McDonald’s, according to the arbitrator.
“Rankine, whose evidence is that she did not file a complaint about the first incident or any other complaint with the TTC until this one, had no reason to file a complaint against McDonald unless the events happened largely as she described. I find her testimony more credible than McDonald’s. As for the union’s question about why McDonald would close the door and admit he was doing so as a reprisal when there were other passengers witnessing, that is no easier to explain than why he would do it at all. Sometimes there is no rational explanation for a person’s actions,” said Slotnick.
And there were “significant flaws” in some of the driver’s testimony, said Slotnick.
“(McDonald) did not file a report on the incident until after Rankine’s complaint came in, and Molvi raised the issue with him. (McDonald) testified he did not report the incident because there was no injury, but the evidence is that he has filled out occurrence reports previously where there has been no injury. (McDonald) acknowledges that he drove the bus away without any passengers, yet he did not report this at the time, nor did his occurrence report say anything about taking the bus out of service,” said Slotnick.
“Instead, rather misleadingly, his report says he returned to the bus from the bathroom, and ‘I drove after that,’ leaving the impression that everything was normal when, in fact, he had left passengers at the stop. He testified that the passengers left the bus while he was in the bathroom and told him to drive on without them because Rankine was being abusive. I find this improbable.”
Reference: Toronto Transit Commission and Amalgamated Transit Union, Local 113. Lorne Slotnick — arbitrator. Jeff Rochwerg for the employer. Adam Webb for the employee. Feb. 13, 2019.
Mitchell McDonald was hired in July 2013 as a transit operator but on Oct. 15, 2017, he was driving the Sheppard East bus in eastern Toronto when he pulled into a station around 5 p.m. Natasha Rankine was the last in line of a number of passengers who waited to board the bus.
When Rankine attempted to get onto the bus, the door abruptly shut, trapping her arm and leg. She was let go after he opened the door.
The following day, Rankine submitted a handwritten statement to the TTC about the incident: “He then released me from the doors and said, ‘Do you remember the time when your boyfriend or guy friend swore at me?’ In June of this year, my boyfriend at the time and I were riding the bus. My friend was topless. As we were exiting, the driver informed us that he (my friend) couldn’t be on the bus without a T-shirt. They had an exchange of words and that was that.”
On Oct. 16, manager Adnan Molvi, asked McDonald for a meeting to discuss the incident.
McDonald later filled out an occurrence form stating: “Black woman got her front foot stuck in the door as it was closing. I apologized to her, let her know the door was closing already, and said sorry again. I also let her know that I was cold, which was why I closed the door.”
McDonald also said he left the station after the incident with an empty bus after Rankine began swearing at him.
On Oct. 20, McDonald was terminated. At the time, he was subject to a last-chance agreement (LCA) stemming from a previous negative interaction with a passenger in 2017.
The Amalgamated Transit Union (ATU), Local 113, grieved the firing.
It argued that because McDonald was not offered union representation during the first meeting, the termination should be voided.
Arbitrator Lorne Slotnick disagreed and dismissed the grievance.
“I find that McDonald deliberately closed the bus doors while Rankine was boarding, in reprisal for the earlier encounter and in violation of his last-chance agreement. I further find that he was not improperly denied union representation at the Oct. 16 meeting.”
As well, the evidence of Rankine was more credible than that of McDonald’s, according to the arbitrator.
“Rankine, whose evidence is that she did not file a complaint about the first incident or any other complaint with the TTC until this one, had no reason to file a complaint against McDonald unless the events happened largely as she described. I find her testimony more credible than McDonald’s. As for the union’s question about why McDonald would close the door and admit he was doing so as a reprisal when there were other passengers witnessing, that is no easier to explain than why he would do it at all. Sometimes there is no rational explanation for a person’s actions,” said Slotnick.
And there were “significant flaws” in some of the driver’s testimony, said Slotnick.
“(McDonald) did not file a report on the incident until after Rankine’s complaint came in, and Molvi raised the issue with him. (McDonald) testified he did not report the incident because there was no injury, but the evidence is that he has filled out occurrence reports previously where there has been no injury. (McDonald) acknowledges that he drove the bus away without any passengers, yet he did not report this at the time, nor did his occurrence report say anything about taking the bus out of service,” said Slotnick.
“Instead, rather misleadingly, his report says he returned to the bus from the bathroom, and ‘I drove after that,’ leaving the impression that everything was normal when, in fact, he had left passengers at the stop. He testified that the passengers left the bus while he was in the bathroom and told him to drive on without them because Rankine was being abusive. I find this improbable.”
Reference: Toronto Transit Commission and Amalgamated Transit Union, Local 113. Lorne Slotnick — arbitrator. Jeff Rochwerg for the employer. Adam Webb for the employee. Feb. 13, 2019.
