Fired forklift driver's version not credible: Arbitrator
An arbitrator has upheld the dismissal of an Ontario worker after he twice threatened a co-worker and tried to downplay it afterwards.
The worker was employed with Atlantic Packaging, a producer of packaging products in Toronto, for 12 years as a forklift operator.
On Dec. 10, 2015, the worker approached another employee on the plant floor after his shift was over and began yelling at him in front of several other employees.
He said “If you have a f---ing problem, we can take it outside.”
The worker’s supervisor came out of his office and the other employee told him that the worker had just threatened him. The supervisor asked the worker if this was true and the worker agreed that he was, using another profanity.
The supervisor told the worker to leave, but about 15 minutes later the supervisor received a text from the worker about the other employee with another profanity.
The other employee filed a complaint and told Atlantic that less than one month earlier, the worker approached him while he was operating a forklift on the night shift with nobody else around. The worker was driving a forklift as well and blocked his way, yelling, “What the f--- is your problem?”
The other employee claimed the worker followed this up by yelling, “You have a problem with me? You better mind your f---in’ business.” The other employee said he didn’t report this incident at the time because he wasn’t sure how it would be handled, given that it was a single incident without any witnesses.
Atlantic investigated the complaint by interviewing the employees who had witnessed the December incident, the supervisor, and the worker. The worker denied that anything happened and said someone had told him his co-worker had been talking about him. He said he only asked the other employee why he had been saying things about him and didn’t offer to “take it outside” or make any threats.
The worker also said “nothing happened” with the November incident and he had only asked his co-worker about comments he had made about the worker being driving to work by another employee.
Atlantic didn’t believe the worker’s story, particularly in light of the witness accounts it had for the December incident. The company determined the worker had engaged in two incidents of abusive and violent behaviour. It was concerned about the impact on other employees and the worker’s failure to take responsibility for it, so it terminated his employment.
The worker claimed the other employee exaggerated the incidents — particularly the November one, which the other employee didn’t report at the time.
His union, the International Brotherhood of Teamsters, grieved the dismissal, arguing there wasn’t enough evidence to provide just cause.
Arbitrator Jasbir Parmar found the worker didn’t have much credibility in his accounts of the incidents. The worker dismissed both incidents with similar comments, saying “nothing happened.”
However, there were several witnesses to the December incident, including the supervisor, who reported something did indeed happen.
The worker was proven to have lied about the December incident, so it was likely he lied about the November incident as well.
“The probability that the (worker) was upset and therefore yelling when speaking to (his co-worker) in November is supported by the fact that was his demeanour when speaking to (his co-worker) in December about essentially the same concern (the co-worker) talking about the (worker),” said Parmar. “If this alleged behaviour so enraged the (worker) that he was willing to physically fight with (the co-worker) in December, I find it quite likely that the (worker) may have been angry enough to yell while addressing the same topic just weeks earlier.”
Parmar also found the worker’s explanation for his behaviour was less than credible as well. The worker claimed the other employee had been talking about him, but couldn’t identify anyone specifically, just saying “everyone.”
None of the witnesses were aware of the co-worker talking about the worker and the supervisor also didn’t know anything about it.
Even if the worker had reason to believe he was being talked about, the arbitrator found it was relatively “innocuous” and not warranting such a strong response.
The worker’s “physically intimidating” behaviour and comments about taking it “outside” could be logically interpreted as threats, which weren’t appropriate in the workplace, Parmar said.
The arbitrator also noted the worker didn’t offer an apology or acknowledgment of wrongdoing, even at the investigation after he had an opportunity to calm down.
The worker apologized for the first time at the arbitration hearing, which was an attempt to get his job back, said Parmar.
Parmar determined that there was no indication the worker appreciated the seriousness of his misconduct and returning him to the workplace was “untenable.”
The termination was upheld.
For more information see:
• Atlantic Packaging Products Ltd. and International Brotherhood of Teamsters (GCC, Local 100m)(Brar), Re, 2016 CarswellOnt 19241 (Ont. Arb.).
