Employee fired for history of fighting, not safety complaint

Employee's history of workplace altercations outweighed any consideration of his raising safety concerns as factor in dismissal

The United Parcel Service (UPS) did not fire a disgruntled employee because of his safety complaints but rather because of his disciplinary record, the Canadian Industrial Relations Board has ruled.

Tony Aker began working for UPS in 2002. Over the years, he developed an antagonistic relationship with a co-worker. This acrimony led to a few disputes and incidents at the workplace, including physical assaults. Both employees received discipline for some of the incidents, which were stored in their employee files, and UPS tried to resolve their differences.

On Nov. 18, 2008, Aker had another incident with his co-worker. Things escalated and the co-worker assaulted Aker in the men’s room at work. UPS sent both employees home and suspended them while it investigated the incident. During the investigation, UPS met with Aker and the co-worker, in addition to other employees who witnessed anything.

After the last altercation, Aker claimed he was in an unsafe work environment because of the harassment and assault from his co-worker, which violated his rights to a safe workplace under the Canada Labour Code.

After getting the facts and looking at the disciplinary history of both employees, UPS decided to terminate both of them on Dec. 4, 2008. The company viewed them as safety threats to the workplace and felt they weren’t going to change after being previously disciplined.

Aker claimed he was terminated because he had raised safety concerns that UPS had done nothing about. This constituted a reprisal for being a troublemaker, he said, which also violated the code.

The board said when an employee files a claim related to dismissal as a reprisal for refusing to do dangerous work, the onus is on the employer to prove the refusal was not a factor in dismissal. However, since Aker did not specifically refuse dangerous work but rather expressed safety concerns, the onus was on him to prove his termination was a reprisal.

The board gave a lot of weight to Aker’s disciplinary record, which UPS had fully documented over the years. This gave credence to the company’s argument that Aker had been fired because of his disciplinary history and the safety concerns it raised, especially since the co-worker received the same punishment.

“If harassment or fighting has been an issue in the workplace, an employer is not prevented from imposing discipline merely because the code may be in issue. UPS might have had more difficulty had the Nov. 18, 2008, event constituted a single episode which immediately led to Mr. Aker’s dismissal. However, the board cannot ignore the significant background to the situation between Mr. Aker and (the co-worker) upon which UPS relies,” said the board.

The board found Aker did not provide sufficient evidence to show his termination was for anything other than his disciplinary and behavioural history at work. It dismissed his complaint. See Aker v. United Parcel Service Canada Ltd., 2009 CarswellNat 5413 (Can. Ind. Rel. Bd.).

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