Canadian Labour Reporter

November 16, 2020

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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Two weeks after the worker resumed driving herself, her knee locked up while driving and she had to go off work again. Her doctor completed a functional abilities form that indicated the worker could use public trans- portation and drive for a maxi- mum of 30 minutes. At a return-to-work meet- ing in February, the worker said public transit wasn't an option as she had difficulty with stairs. The TDSB suggested she break up her drive, but the worker said that wasn't feasible and the union suggested she work closer to her home. The TDSB believed her regular position was suitable with accommodations. A couple of days later, the worker experienced pain and swelling in her knee and she provided a doctor's note stating that she was unable to sit, stand, or walk and she was "not able to drive to and from work." On March 4, the worker pro- vided a medical note stating that she was fit to return to work with a maximum commute of 15 minutes by car. A psychologi- cal assessment reported that the worker "seems to be afraid of driving long distances" and rec- ommended that she work closer to home. In July, the worker provided a functional abilities form with permanent driving restrictions of 30 minutes. The form stated that taking breaks would exacer- bate her pain. The TDSB offered the worker a job that was a 17- to 45-min- ute drive from her home, but the union rejected it because it had lower pay and wouldn't always fit within her driving restrictions. The board also offered a tem- porary transfer that was within her restrictions if she took a toll highway, but the worker reject- ed it as it was different from her normal position. On March 1, the worker pro- vided a doctor's note stating that the worker was "totally disabled" and couldn't perform her job du- ties "in any setting." The union claimed that the TDSB failed to accommodate the worker, pointing to multiple positions at the TDSB office — a 12- to 35-minute drive from the worker's home — but the TDSB argued that the worker wasn't qualified for them and some would amount to a promotion. The arbitrator found that the worker refused to consider other alternatives to driving continuously on her commute, including breaking up her drive or taking public transit. In ad- dition, the two positions the TDSB offered were reasonable attempts at accommodation, but the worker refused to con- sider them. The TDSB also con- tinued to offer modified work in her original position, said the arbitrator. "In my view, the adverse im- pact is not caused by the [work- er's] needs, but rather the ad- verse impact is related to the [worker] unreasonably restrict- ing her commute based on her personal preferences," said the arbitrator. The arbitrator determined that the TDSB made reason- able efforts to accommodate the worker and the last doctor's note indicated that she was totally dis- abled and couldn't be accommo- dated in any manner. Reference: Toronto District School Board and CUPE, Local 4400. John Stout — arbitrator. Daniel Fogel, Sean Eginio for employer. Megan Reid, Andrea Vitopoulos for employee. May 5, 2020. 2020 CarswellOnt 15019 Worker restricted commute to personal preferences Previous incident revealed engineering, safety issues gates that had detectors in the ground that triggered the open- ing of the gates. Dock man trucks each had a mast extending 12 feet above the truck's cab with a light and a sensor on it. On Nov. 4, 2018, a truck's mast hit a gate as it was exiting the yard. GCT investi- gated and determined that the incident was caused by the fact that the location of the detectors didn't allow dock men to see the gate as it was raised. The inves- tigation report recommended installing a large white stop bar with a detector behind it and sig- nal lights. A short time later, GCT im- plemented a drug and alcohol policy. The policy allowed for substance testing of employees following an incident considered to be a "significant event" where a preliminary investigation de- termined that an employee di- rectly contributed to the event. Significant events were defined as accidents that resulted in a fatality, significant injury, sig- nificant damage to property, equipment or vehicles, a hazard or spill; or near misses that could have resulted in any of those cir- cumstances. A refusal to provide a requested test was considered a positive test result under the policy. On Dec. 5, Ahmad was driv- ing a truck into the rail yard. It was his second time working at the yard but his first time driving into it. He slowed at the gate and then accelerated through, caus- ing the truck's mast to hit the still-opening gate. The mast was significantly damaged and the gate was rendered inoperative. Management reviewed video footage that showed the truck accelerating into the gate as it opened. The weather was clear and the area was well-lit, so they determined that Ahmad's ac- tions constituted a root cause of the incident. They requested a substance test under the drug and alcohol policy. A union representative told management that a substance test wasn't a reasonable line of inquiry because the root cause was the lack of sufficient safety measures at the gate. Ahmad then refused to undergo a test. Management didn't observe any signs of impairment, but GCT deemed the refusal a posi- tive test. As a result, Ahmad had to comply with the policy's return-to-work requirements in- volving a clearance to return by his physician and an assessment. The union grieved the post- incident substance test require- ment, arguing that the previous safety concerns were a factor and the accident was simply a mistake. Ahmad provided a doctor's note clearing him to work on Jan. 2 but had to provide a second note on Jan. 16. That day, he was cleared to return to work. The arbitrator found that the evidence showed Ahmad clearly accelerated into the gate instead of moving cautiously, so there was "an objective basis" to in- quire into his conduct, said the arbitrator. The arbitrator agreed that the engineering of the gate may have contributed to the incident as well as other factors. However, the other factors didn't necessar- ily absolve Ahmad of responsibil- ity, said the arbitrator. The arbitrator determined that management carried out an adequate preliminary investiga- tion under the policy and estab- lished a reasonable line of inqui- ry that entitled them to demand a substance test. However, Ah- mad met the return-to-work re- quirements on Jan. 2 but wasn't reinstated until two weeks later. GCT was ordered to pay com- pensation for lost wages during that period. Reference: British Columbia Maritime Employers Assn. and ILWU Canada. Julie Nichols — arbitrator. Drew Demerse, Teo Bardas for employer. Craig Bavis for employee. Oct. 5, 2020. 2020 CarswellNat 4369

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