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Issue link: https://digital.hrreporter.com/i/1344580
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