Co-worker animosity culminates in washroom punch-up, firing

Two co-workers, former friends, couldn't stop fighting at work

A New Brunswick employer had just cause to fire an employee who punched a co-worker, even though the employee was suffering from stress caused by personal problems, an adjudicator has ruled.

Tony Aker worked for United Parcel Service Canada (UPS) in Fredericton. UPS employees were required to follow the company’s policies on professional conduct, harassment prevention and violence prevention, which stipulated UPS would not tolerate harassment “of any employee, by anyone, for any reason.” It was also clear violence in the workplace would result in discipline up to and including termination.

On July 27, 2005, Aker had a verbal altercation with a co-worker, Krisztian Fonagy. Both employees were required to sign copies of the policies to show they understood what was unacceptable and the consequences. However, tensions remained high between the two men, who had once been friends but had a falling out.

On Jan. 5, 2006, Aker was leaving the washroom when he bumped into Fonagy. Fonagy walked away and later asked UPS to do something before things escalated. He told a supervisor there had been ongoing altercations and Aker often called him names and tried to make physical contact. Other employees verified the animosity between them.

UPS couldn’t determine who started the incident, so it issued a written warning to both employees. Aker was instructed to stop making offensive comments to Fonagy, avoid Fonagy’s work area and stay away from him during lunch breaks. If he didn’t, he was told it would lead to further discipline and possibly termination.

However, on Oct. 20, 2006, another verbal altercation happened in the lunch room. Each employee reported it and blamed it on the other. UPS issued each employee another written warning that stated it was the final notice.

The contempt each of the men had for the other, however, was too strong and on Nov. 18, 2008, they ran into each other in the washroom. They exchanged words and it became physical, with each man hitting the other. UPS called the police and it turned out Aker and Fonagy had also clashed outside work, resulting in criminal charges on three occasions.

Concerned with the repeated violations of company policies and the disruption to the workplace, UPS fired Aker and Fonagy for cause on Dec. 4, 2008. They both filed unjust dismissal complaints, but Fonagy withdrew his.

The adjudicator found UPS properly investigated each incident and tried to determine responsibility, and it was clear both employees provoked one another. Their incidents outside work showed their tendency to get physical and the last incident showed things were escalating at work, said the adjudicator.

UPS took reasonable steps to contain the situation and Aker had sufficient warning to stop his misconduct, said the adjudicator. This was a sufficient course of progressive discipline which just didn’t seem to work.

The adjudicator also noted Aker had never apologized for his involvement in the incidents. Without showing any inclination to defuse the situation, it was unlikely he could return to work and avoid further misconduct.

“The confrontation in the washroom can be seen as the culminating incident. It is of the same nature, only more serious than the previous ones, for which (Aker) had received warnings. In the absence of evidence from (Aker) rebutting his participation in the confrontation, the employer must be seen as having no choice but to terminate his employment,” said the adjudicator. See Aker v. United Parcel Service Canada Ltd., 2010 CarswellNat 1837 (Can. Arb. Bd.).

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