Canadian Safety Reporter - sample

6 Canadian HR Reporter, a Thomson Reuters business 2019 April 2019 | News Lights out for worker who refused night shift move Worker claimed he couldn't work night shift for medical reasons, but medical information he provided didn't support his argument BY JEFFREY R. SMITH AN ONTARIO arbitrator has up- held the dismissal of a worker who refused to accept a move to the night shift. Talat Khan was a millwright for Nestle Canada at the com- pany's production facility in To- ronto who was hired in 2012. He normally worked the afternoon shift, but on March 15, 2018, the maintenance manager informed him that he was being moved to the night shift effective March 25 so the company could bal- ance out the millwrights on each shift. Khan had a vacation sched- uled around that time, so his first scheduled night shift wouldn't happen until April 10. Khan wasn't happy about the change because he felt it vio- lated the collective agreement and thought he was entitled to a layoff instead of a shift change. According to the manager, Khan called the manager a profanity and ripped up the letter. After his vacation, Khan re- ported to work on April 10 but on the afternoon shift. His team leader told him he was expected to return to work on the night shift, but Khan refused to do so. The maintenance manager ac- knowledged it could be difficult to switch to the night shift dur- ing the week, so he allowed Khan to work the afternoon shift for the rest of the week and start on the night shift the following Sun- day, April 15. However, on April 15 Khan didn't show up for the night shift. Instead, he arrived at work for the afternoon shift on April 16. The manager and team leader told him to go home and come back for the night shift that eve- ning, but Khan was once again a no-show with no call-in to report his absence. He again re- ported for work the following afternoon. The maintenance manager brought the issue to upper management, who scheduled a meeting with Khan and a union steward on April 17. Khan's continued refusal to work the night shift was discussed and he was told to go home and return for the night shift that evening. However, according to the main- tenance manager, Khan was dis- respectful in the meeting, used profanities, called the managers stupid and said they didn't know what they were doing. Stuck to afternoons Though he had been told to go home, Khan remained at the fa- cility throughout the afternoon shift. He didn't report for work that night or the next night, ar- riving for the afternoon shift in- stead. Nestle decided to suspend Khan for "insubordinate and in- appropriate conduct" including disrespectful conduct towards his managers and unauthorized absences from work. Since Khan had a previous one-day suspen- sion on his record, this suspen- sion was for three days, at the end of which he was expected to report to work for the night shift or face "more severe progressive discipline and this may include termination." Khan responded by throwing the notice of sus- pension across the table and saying whoever wrote it must be stupid. Khan didn't report for work af- ter his suspension ended. He was absent without calling in for the next three days and Nestle didn't hear from him until he came to an April 25 meeting to discuss a grievance of the suspension. At the meeting, Khan stated he had a medical condition preventing him from working the night shift and he had provided medical in- formation to the company nurse in June 2017. Nestle checked out the in- formation Khan had provided 10 months earlier and found it consisted of a note stating Khan "has been unable to do changing shift work for medical reasons" as it affected his sleep patterns, caused headaches, and disrupt- ed other functions. The note said Khan would benefit from "being placed on a steady shift with minimal to no disruptions." A subsequent form that had been given to Khan for his doctor to complete wasn't returned. Nestle provided another form to Khan for his doctor to fill out and told him he would remain on night shifts until the company received information stating he couldn't do so. Khan remained absent from work, but Nestle held off on disciplining him while it waited for the medical information. On May 9, Khan presented the com- pleted form with similar recom- mendations as the previous note, but Nestle didn't think it proved he couldn't work the night shift — he just needed a steady shift, regardless of the timing, with no sudden changes. Khan was angry with the de- cision and told management they weren't doctors and should reach out to his doctor for more information. Nestle said it had enough information to deter- mine he could work a steady night shift and if he disagreed, he should provide more informa- tion backing up that claim. Credit: Shutterstock/Lightspring Medical note > pg. 8

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