Canadian Employment Law Today

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Gst #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUstoMeR seRViCe Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: karen Lorimer Publisher: John hobel Managing Editor: todd humber Editor: Jeffrey r. smith E-mail: Jeffrey.R.smith@thomsonreuters.com ©2015 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com how would you handle this case? Read the facts and see if the judge agrees yoU Make THe Call 8 Employee puts brakes on retraining THis insTalmEnT of You Make the Call features a bus driver who was fi red after re- fusing to attend out-of-town training. Dean West was a long haul motor coach operator for Vancouver Island Coach Lines (VICL), based in Nanaimo, B.C. He began his employment in 1994 and in September 2005 he went on stress leave. e leave be- gan after an incident with a manager follow- ing a passenger complaint and eventually turned into long-term disability leave. A few months before West went on leave, VICL was amalgamated with Greyhound. In November 2012, West said he was ready to return to work. He wasn't seek- ing accommodation, so Greyhound said it needed updated medical information to clear him to work without restriction. West underwent a medical examination in January 2013 and on Feb. 5 his doctor reported he was able to return to work. He recommended a graduated return begin- ning with two hours a day, fi ve days a week for one month, with increasing hours until he reached eight hours in the fourth month. Greyhound was concerned how the grad- uated approach could be applied to the job of a long-haul coach operator and request- ed an independent medical examination (IME). It was also concerned with West's strife with the manager, as they had already had an argument over the phone when dis- cussing the return-to-work plan. e initial IME appointment didn't pan out and West had to go for another one, which took until April. After it was fi nally completed, West was cleared for work. When he provided his medical documenta- tion, Greyhound scheduled retraining on its new coaches to begin on May 21. However, the retraining didn't begin be- cause Greyhound requested information from West's doctor regarding the gradu- ated hours and didn't receive a reply in time. Eventually, the doctor reiterated his four- month graduated plan, though he didn't identify any restrictions other than it should be in Nanaimo. Greyhound decided such a plan wasn't feasible for his six-week retrain- ing, which required eight hours a day for the training period plus a few days in Vancouver for classroom air-brake training. Until West could attend the training, it couldn't begin a graduated return-to-work program. West insisted he couldn't defy his doc- tor's orders and would not agree to full-time hours when he returned to work. He also in- sisted he didn't need to attend the air-brake training in Vancouver because he already had his air brake endorsement, but Grey- hound's policy was for him to refresh the training since he had been off work for so long. West obtained another note from his doctor on June 19 that said travel to "Van- couver is not possible," though he didn't tell his doctor he was required to go there for a few days of classroom training. e training was set to begin July 2 and West was told again he would be required to attend air brake training in Vancouver for two to three days. e air brake training was later scheduled for early August, following four weeks of training in Nanaimo and to be followed by one more week in Nanaimo. West indicated he would be following his doctor's orders and would not attend train- ing in Vancouver. On Aug. 6, West reported to work in Na- naimo. His manager asked him if he had changed his mind about going to Vancouver for air brake training the next day, but West said until he saw his doctor the next day he had no choice but to follow his graduated return-to-work plan. e doctor completed a form on Aug. 7 say- ing West was in good health and was continu- ing his return to work but saying nothing of West's ability to go to Vancouver for training. On Aug. 15, Greyhound terminated West's employment for disregarding instructions to complete his training and follow company policy, which breached its trust and the em- ployment relationship. YoU MaKe the CaLL Was dismissal an appropriate response? OR Should the employer have taken other action? iF You said the employer should have taken other action, you're right. e ar- bitrator found it was understandable for Greyhound to take a deliberate approach to West's return to work, given his reason for being off work and the prickly relationship with his manager. Unfortunately, this envi- ronment caused trouble in communication between the two sides. e arbitrator found West "was repeat- edly directed and he repeatedly refused to attend classroom training in Vancouver both before and after he visited" his doctor on Aug. 7. He was able to rely on his doc- tor's earlier travel restriction because he hadn't seen him yet, but continued to re- fuse after seeing the doctor even though no restrictions were given. Rather than a concern for the travel being unsafe, the refusal was "the pinnacle of simmering unresolved diff erences" between West and his manager. However, the lack of communication and follow-up from Greyhound put some re- sponsibility on the company, said the arbi- trator. It was clear there would be an issue with West attending the classroom training in Vancouver, but it simply told him of the dates a week before. As a result, there wasn't suffi cient cause for dismissal. Greyhound was ordered to reinstate West, but because he failed to attend the classroom training in Vancouver, it did not have to pay compensation for lost wages. e arbitrator also ordered West to com- plete the training before he could return to work. See Greyhound Canada Transporta- tion Corp. and Unifor, Local 114 (West), Re, 2014 CarswellNat 47 (Can. Arb.).

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