Canadian Employment Law Today

4 Canadian HR Reporter, a Thomson Reuters business 2015 Worker's work refusal escalates Suspension for refusing assigned work leads to altercation and dismissal for breach of company's violence and harassment policy BY JEFFREY R. SMITH A n Ontario arbitrator has upheld the suspension and dismissal of a city worker who responded to the suspension with profanity and threats. e 54-year-old worker was hired as a seasonal driver loader by the City of To- ronto waste management department in March 2007. In July of that year, he suf- fered a knee injury and went on Work- place Safety and Insurance Board (WSIB) benefits until February 2009. Before the worker returned to work he was laid off on Dec. 31, 2008. e union grieved the layoff and the city agreed to re- scind the layoff and credit the worker with enough hours so he could participate in the work selection process for seasonal work- ers. However, he remained a probationary employee until he completed six months of actual service as required in the collective agreement — under the agreement, the city had the right to discharge employees during the probationary period. e city acknowledged it did not pro - vide the worker with accommodated work between February 2009 and March 2010, and provided him with compensation for that period, minus WSIB benefits he had received. During that time, the worker had also participated in a labour market re-entry program through the WSIB and completed a diploma in digital media arts. In February 2013, the worker partici - pated in the city's work selection process for seasonal jobs as he was unable to find a job related to his diploma. e day before, he had obtained a return-to-work informa - tion form from his doctor that advised he could return to work with some medical restrictions, including no heavy pushing or pulling, no ladder climbing, no crouch - ing or kneeling, and no walking on uneven ground. Despite these restrictions, the worker felt he could perform the duties of a light equipment operator, which operated litter vacuums. e city awarded the worker a light equipment operator position from April 17 to Nov. 12, 2013, provided he passed a health review and functional abilities as - sessment. e worker went to a city facility on March 26 for a two-day assessment, but after the first day he was in too much pain to do the second day, which was postponed to the following week. e assessment determined the worker was able to perform the daily duties of a light equipment operator and labourer, with permanent modifications. He returned to work on April 22 on a graduated basis, since he had not worked in six years. He started with a schedule of three alternating days per week for two weeks, followed by four days per week for another two weeks, and full work hours by the fifth week. Difficulty in getting back to work However, on April 24, his second sched- uled day of work, the worker called in sick due to swelling in his knee. He told his supervisor he had concerns about his ability to do the job of a light equipment operator, followed by a letter to human resources stating the same concerns. On May 3, the worker was assigned to use a litter vacuum for the day, but he returned it because it didn't have enough power to go uphill. e vacuum was sent for repairs and the worker was assigned to the "bag and broom" beat on the streets. About one hour before the end of his shift, the worker returned to the yard with sore knees, so the supervisor let him rest in the lunchroom until his shift ended. On May 6, the litter vacuum the worker was operating broke down and had to go in for repairs. ere were no other vacuums available that the worker could use due to his height and foot size, so he was assigned to manual litter collection. e worker said he could not walk around on a litter beat because of his knees, so he was sent home for the day. e city sent the worker a letter indicat - ing his functional abilities form had not said he couldn't perform litter collection on foot as long as he had breaks and it would re- quire medical documentation for any fur- ther absences. On May 9, the worker was sent home again after saying he was unable to perform manual litter cleaning duties. He suggested he could do it if with a truck or do other tasks that weren't in his job duties, but the city requested medical documentation that he couldn't do the work he had refused. e worker provided the city with a letter from his doctor stating that during his func - tional assessment, the worker had only been required to walk for 12 minutes or 720 me- tres. It was the doctor's opinion that walking any further would cause the worker pain and could lead to further disability. However, the worker had stated during his testing that he could walk up to eight hours on non-con - secutive days and would be able to do the job if given the opportunity. e city told the worker it had no basis to accept that he couldn't perform the assigned work and if he refused to in the future, he would be subject to discipline up to and including discharge. On May 29, supervisors were concerned about severe weather conditions that were expected, so they decided not to send out litter vacuums. All the staff were assigned to poster removal duty from poles on major streets. e worker said he could not do the work, so he was told to wait while a man - ager was summoned. However, the worker found the union steward and went to meet with the general manager. Work refusal leads to altercation ey all went to the manager's office and the worker said the manager had the medical documentation. e manager CASE IN POINT: JUST CAUSE WHEN people get into frustrating and emotional situations, it can be easy for things to escalate if the frustration continues. But escalation often means more trouble. This is especially true for employees who are having problems at work. An employee having a disagreement with management can get into trouble if his behaviour crosses the line into insubordination – that can lead to disciplinary action by the employer. But once the discipline is issued, if the employee persists or escalates things, it can make things worse – especially if behaviour that started as insubordination becomes threatening. And when workplace violence and threats enter into the equation, things can get a lot worse for the employee than discipline. Sometimes it's better to just quit while you're ahead, or a suspension can turn into termination. BACKGROUND

• Cover