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Issue link: https://digital.hrreporter.com/i/1309570
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