Canadian Labour Reporter

non-stop service by taking shifts of four hours on and four hours off. Bakija suffered a heart attack in 2017 and remained off work until April 2018, when he returned to working with his regular dedi- cated driving partner. The partner retired in September and Bakija advised YRC that he wanted to drive solo. When the company offered him an experienced re- placement driver, he abruptly re- sponded that he wouldn't run with double drivers regardless of what the managers wanted. However, Bakija didn't have the seniority for regular single runs and two-driver express runs were the heart of YRC's business. YRC requested a functional abilities form from Bakija's doc- tor, who indicated that "Bakija's main treatment for his medical condition is regular exercise and healthy diet, and driving single will enable him to follow his treat- ment plan." However, the doctor refrained from making a specific recommendation regarding Baki- ja's job duties, as he wasn't knowl- edgeable about the business. YRC management believed Bakija was seeking accommoda- tion but it didn't feel he needed it. In the investigation hearing, Baki- ja said that he was an independent contractor and management had no authority over him. He added that he needed time to drive single and exercise every day, which he couldn't do on team driving be- cause he was either driving or lay- ing down. YRC placed Bakija out of ser- vice indefinitely and Bakija re- sponded that management "sin- glehandedly caused all of this and the company will be out a lot of money" because of them. YRC allowed Bakija to tem- porarily transfer to the "B" driver board where he could drive single runs until a co-driver could be found. Bakija eventually trans- ferred back the "A" double-driver board in June 2019 and accepted a co-driver. This arrangement lasted for three months until the new co-driver resigned. YRC of- fered Bakija a replacement co- driver, but Bakija refused as he felt the driver wasn't experienced enough. The proposed co-driver was a new Canadian with expe- rience driving transport over- seas but Bakija was worried he wouldn't be able to rest when an inexperienced partner was driv- ing. On Sept. 26, YRC terminated Bakija's employment for insubor- dination stemming from multiple refusals to follow instructions consistent with company require- ments. The arbitrator noted that Bakija returned to work after his heart attack without medical restric- tions and didn't request accom- modation. He returned to a two- driver team without incident and only raised his medical require- ments after his partner resigned and he wanted to drive single runs. The arbitrator found that Baki- ja wasn't excluded from appropri- ate positions that he was qualified to do — two-driver express runs — and he was seeking an accom- modation without proper medi- cal justification in order to get a preferred assignment. In addition, his attitude towards management generally was "inappropriate, bel- ligerent and threatening," which was conduct deserving of disci- pline, said the arbitrator. However, the arbitrator also found that YRC management adopted a confrontational atti- tude that helped provoke Bakija's behaviour. It didn't believe ac- commodation was necessary be- fore getting medical information and adopted a hard line against a driver with long service and an unblemished driving record. The arbitrator determined that termination was excessive. YRC was ordered to reinstate Bakija with an unpaid suspension on his record. In addition, the arbitra- tor recommended giving Bakija and his new partner a shorter run to help determine if he could get the regular rest and exercise he needed. Reference: Unifor, Local 4209 and YRC Freight Canada. Tom Hodges — arbitrator. Grant Sefanson, Bret Lercher for employer. Mike Shantz for employee. Jan. 7, 2020. 2020 CarswellOnt 17249 missing. The executive director tried to train and mentor Khogali but he wasn't receptive to it and he usually blamed others for any problems. The executive director held a performance evaluation meet- ing in April 2017 outlining areas in which Khogali needed to im- prove. Thirteen months later, in May 2018, LCS issued a warn- ing letter about his "lack of focus and productivity" that stated his performance would be re-evalu- ated in three months when he re- turned from a leave of absence he was taking to run in the Toronto City Council election. LCS endorsed Khogali's candi- dacy, but when the Ontario gov- ernment reduced the number of city wards, he ended up running against another labour-friendly candidate. LCS thew its support behind the other candidate and Khogali agreed she was the better option. LCS issued a second warn- ing letter in July 2019 about his shortcomings that was "very seri- ous" and stated that he would be re-evaluated in September. How- ever, Khogali refused to admit to any performance problems and responded by alleging LCS was trying to constructively dismiss him through intimidation and a hostile work environment. LCS didn't see any change in Khogali's attitude and perfor- mance, so it issued a third warn- ing letter on Oct. 1, 2019. The executive director informed the Labour Council board of direc- tors about Khogali's work perfor- mance and they decided to termi- nate his employment on Nov. 19. Khogali filed a grievance claim- ing the warning letters he had received were retaliation for his running in the city council elec- tion — he said LCS hadn't raised any performance issues prior to his candidacy — and that the ex- ecutive director constantly ha- rassed him after he returned to work. He also said he did his best to learn when any concerns were raised and he denied refusing training offered by the executive director. The arbitrator found LCS had clear records of the performance evaluation meetings and warning letters, while Khogali's version of events was inconsistent. The evi- dence indicated that "this is not a case of an incompetent employee failing to meet expected stan- dards despite best efforts. Rather [Khogali] simply refused to follow instructions," said the arbitrator. The arbitrator noted that the collective agreement had a sun- set clause of 12 months, so LCS couldn't rely on the 2017 and 2018 letters as part of its dismissal de- cision. However, they could be used to establish that Khogali had been notified that he needed to improve his performance — in- cluding before his election leave — and his ongoing resistance. The arbitrator also found that LCS made multiple attempts to get Khogali to improve his per- formance before terminating his employment. However, Khogali "defiantly refused to change his work attitude despite continuous efforts by [the executive director] to assist with coaching, advice and warnings." The arbitrator determined that Khogali continued to insist he had done nothing wrong "in the face of overwhelming evidence to the contrary" and didn't give any indication he would act differ- ently if returned to his position. As a result, termination was ap- propriate. Reference: Labour Community Services of Metropolitan Toronto and USW, Local 7536. Nimal Dissanayake — arbitrator. Michael Church for employer. Nov. 9, 2020. 2020 CarswellOnt 17288 Failure to admit flaws meant improvement unlikely Worker insubordinate but management triggered him <'Belligerent' pg. 1

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