Employee kept changing date and couldn’t provide details of alleged knife incident with co-worker with whom he had past altercations
An Ontario employer had just cause to dismiss an employee who falsely claimed a co-worker threatened him, an arbitrator has ruled.
Ihor Tropak was a stores clerk providing materials and supplies to tradespeople for the University of Toronto. Starting in 2006, Tropak began having difficulties with other employees in his department. The difficulties began with an altercation with a co-worker in which a verbal argument escalated to the point where the co-worker pushed Tropak into a table. The co-worker was suspended and transferred, and other employees who were friends of the co-worker blamed Tropak.
In December 2006, a new supervisor took over who was friends with the transferred co-worker and wasn’t friendly to Tropak.
Tropak had an altercation with another co-worker who accused Tropak of staring at him and threatened Tropak. When Tropak reported it to the supervisor, he was told to stay away from the area where the co-worker worked, including the washroom. The co-worker had no restrictions placed on him and he continued to come to the stores area.
In May 2012, the university removed the table and microwave oven in the stores area – where Tropak normally ate his lunch – in order to create more space. Tropak and other stores employees were told they could eat their lunch in the trades area where the tradespeople had lunch, but Tropak wasn’t happy about this because he didn’t get along with some of the tradespeople. His concerns were borne out when he was often told all of the seats in the trades lunch area were reserved.
On July 10, Tropak reported to the assistant manager that he tried to sit in an empty chair but a tradesman, Mark Ford, said he couldn’t sit there. Ford walked towards Tropak, another employee intervened, and Tropak left the lunchroom. Ford admitted his behaviour and was told he couldn’t exclude Tropak from the lunch table.
Tropak also complained about his supervisors, whom he alleged were singling him out for data entry errors, scheduling performance meetings without prior warning, and calling meetings just before weekends or his vacation. He also felt the stores supervisor was getting even with him for his complaint about the co-worker who was transferred in 2006.
The university investigated Tropak’s complaints and dismissed the complaint against the stores supervisor, finding Tropak’s desire to have the supervisor demoted was not “in proportion with the allegations that were made, even if they had been upheld.”
Employee accused co-worker of making threat
On March 28, 2013, the union filed a complaint on Tropak’s behalf in which Tropak claimed the same employee from the July 10 lunchroom incident, Mark Ford, encountered Tropak in a stairwell during the week of March 15. Tropak reported that as he walked down the stairs towards Ford, Ford stopped and showed Tropak an eight-inch-long kitchen knife in his hand. According to Tropak, Ford looked at the knife, then looked at Tropak. Tropak said he told a director on March 15 about the incident that had happened earlier that week, but he didn’t initially report it because he felt no one would believe him and he would face reprisals.
A few days later, Tropak said the incident actually occurred “in and around March 5” and he reported it to a director on March 8.
The director to whom Tropak had claimed to report the incident said Ford and a couple of other employees had told him on March 8 that Tropak had been acting oddly at lunch the day before, walking around wearing a hard hat, sunglasses and a paper towel around his face. When the director talked to Tropak, Tropak said the hard hat was borrowed for a project at home, he was wearing sunglasses because his hands were full, and the paper towel was on his shoulder, not his face. Tropak also said several employees were out to get him.
At this time, Tropak mentioned an incident with Ford “a week or so ago” and wanted to file a formal complaint, but he didn’t have all the details then. The director told him to get the details together and file the complaint, but Tropak didn’t return. Since Tropak usually lodged complaints and requested investigations for work incidents, the director assumed it hadn’t been serious.
A meeting was scheduled and rescheduled twice, but each time Tropak didn’t come into work. When Tropak was told he would be suspended if he didn’t come into work, Tropak complied but reported trouble breathing and chest pains, so he went home sick.
The university interviewed Ford, who denied threatening Tropak. Ford said he was on vacation from March 8 to 20 and was being unfairly accused. Tropak was interviewed and said the incident happened “the first week of March” after lunch one day, but didn’t give a precise date. Tropak also said he told another employee but he didn’t think that person wanted to get involved.
Tropak also claimed he was concerned management was biased against him and nothing would be done if he reported the incident. He said he didn’t return to the director to discuss details because of a miscommunication which gave him the impression the director would speak to him.
Failure to provide details
University management was concerned about the vagueness of Tropak's complaint, especially the date. The date was important because in the union’s official complaint, the date given was while Ford was on vacation. Tropak then changed the date so it fit with when Ford was at work. In addition, Tropak didn’t provide many other details and his reasons for delaying making an official complaint were sketchy. Tropak had an established pattern of filing complaints and asking for investigations for any issues, so the university felt if Ford had really threatened Tropak, the latter would have immediately complained to someone.
Tropak was given an opportunity to tell his story in another meeting, but Tropak acted “guarded” and said little. It was decided Tropak had fabricated the accusation against Ford, which the university considered gross misconduct and breach of trust. Tropak’s employment was terminated on June 12, 2013.
Following his termination, Tropak filed a report of injury for an acute reaction to the incident to the Ontario Workplace Safety and Insurance Board (WSIB) in which he recorded the date of the incident as “on or around Feb. 28, 2013.” He also said he didn’t report it because he felt no one would believe him.
The arbitrator had difficulty believing Tropak couldn’t remember the exact date of the incident and other important details, particularly since past behaviour showed Tropak “paid meticulous attention to dates and times in his correspondence” when it came to his past complaints. It was more likely the date was changed so Tropak’s story would work with when Ford wasn’t on vacation. The lack of a definite date also made it more difficult for Ford to provide an alibi, said the arbitrator.
When attempts were made to follow up and obtain more details, Tropak stalled and delayed things, such as not coming to work or saying he didn’t have all the details. As it turned out, the union’s complaint on March 28 came when the university was trying to discuss performance issues with Tropak and was an attempt to deflect attention from himself, said the arbitrator.
The arbitrator found Tropak made up the incident in order to get back at Ford because of Ford’s complaint about him walking around the lunchroom in a hard hat and sunglasses, along with Ford’s “efforts to exclude and humiliate him before.”
“I agree with the university’s conclusions that the circumstances of Mr. Tropak’s late reporting; his inability to provide a
date and relevant details at the time of reporting are inconsistent with what someone who was truly threatened would have done,” said the arbitrator.
The arbitrator expressed concern regarding the way Tropak was bullied in the workplace and the way he was treated. However, this was not enough to excuse the fabrication of such a serious allegation of workplace violence against a co-worker. The termination was upheld.
“Making an unfounded allegation of a threat of workplace violence is malicious.Mr. Tropak has aggravated that misconduct by lying to the employer, the union and to the arbitrator in maintaining to the end that Mr. Ford threatened him with a knife. I echo the concerns of the employer that it is hard to imagine rebuilding an employment relationship with someone who lies about such serious matter,” said the arbitrator.
For more information see:• University of Toronto and CUPE, Local 3261 (Tropak), Re, 2014 CarswellOnt 17047 (Ont. Arb.).