Canadian Safety Reporter

able to return to work "as of May 11/12," or after he saw his doctor. It was agreed Czajkowski would contact the city if he was return- ing, and Czajkowski said he had things to do on May 11 and it would come back the following Monday, May 14. The supervi- sor told him he was expected back at work the next day, and told him "see you tomorrow." Czajkowski didn't return the next day as he said he had phone calls to make, including to the WSIB return-to-work special- ist. However, there was no evi- dence he made any calls that day. Czajkowski then realized he had already booked vacation for the week of May 14-18, so he didn't return to work until May 22, af- ter the Victoria Day weekend. On June 5, the city suspended Czajkowski for five days. The suspension letter cited the April 3 work refusal along with his ab- sence from April 3 to May 10 and his refusal to return to work on May 11. Czajkowski grieved this suspension as well. After serving the suspension, Czajkowski returned to work and often worked in trucks with- out air-ride seats and performed litter-picking. He later testified he just "sucked it up" instead of refusing work, since he was ap- pealing the WSIB's decisions on his restrictions. He claimed his back got worse and he stopped working in January 2013. The next month, he was terminated along with a large number of other roads employees over ac- tivities discovered when they were put under surveillance in November 2012. Worker didn't seek treatment The arbitrator noted that al- though Czajkowski claimed he was in pain at the start of that week when he refused work, he didn't see his doctor or chiro- practor. He also didn't call in sick or file a WSIB claim — "a proce- dure with which he was familiar," said the arbitrator. In addition, Czajkowski had made a request for a change the previous day and could have done it again, but in- stead he immediately announced he was refusing the assignment. "Had he been in pain (on April 3, 2012), he might have been expected to make some refer- ence to it," said the arbitrator. "In the absence of any evidence to the contrary, I conclude that his work refusal on April 3 was motivated by his dislike of his assignment rather than any in- creased pain he was feeling , or any fear for his health and safety." The arbitrator also found there was no evidence Cza- jkowski contacted the Minister of Labour after his work refusal — at least not until after the WSIB rejected his claim that his April 3 assignment was outside his restrictions. He also didn't produce any medical evidence of additional restrictions, which his supervisor had asked him for. Based on the evidence the city had, Czajkowski was not restricted from doing the assign- ment he had refused. In addition, there was no rea- son for Czajkowski not to show up for work over the next month, said the arbitrator. Though the city should have tried to contact him or warn him of discipline, Czajkowski was at fault for fail- ing to attend work. Even then, the city didn't terminate his em- ployment until after it met with him to try to arrange a return to work. When Czajkowski didn't return on May 11, it was likely he simply didn't want to come back for one day before his vacation and he lied about having to make some calls that he didn't actually make, said the arbitrator. The arbitrator determined Czajkowski's work refusal on April 3, 2012, "was neither based on an honestly held belief that his health or safety was in jeopardy, nor was it objectively reason- able." The one-day suspension he was given was justified. The arbitrator also found there was no good reason why Czajkowski didn't return to work after that, and the five-day suspension was appropriate. Finally, the arbitrator found that while the November 2012 misconduct for which Cza- jkowski was fired while he was off work wasn't sufficient just cause by itself, the two suspen- sions he already had were legiti- mate and together made termi- nation appropriate. For more information see: • Hamilton (City) and CUPE, Local 5167 (Czajkowski), Re, 2016 CarswellOnt 2785 (Ont. Arb.). ©2016 Thomson Reuters Canada Ltd ISBN/ISSN: 978-0-7798-2810-4 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, photocopying, recording or otherwise without the written permission of the publisher (Carswell, a Thomson Reuters business). Canadian Safety Reporter is part of the Canadian HR Reporter group of publications: • Canadian HR Reporter — www.hrreporter.com • Canadian Occupational Safety magazine — www.cos-mag.com • Canadian Payroll Reporter — www.payroll-reporter.com • Canadian Employment Law Today — www.employmentlawtoday.com • Canadian Labour Reporter — www.labour-reporter.com See carswell.com for information Safety Reporter Canadian www.safetyreporter.com Published 12 times a year by Thomson Reuters Canada Ltd. Subscription rate: $129 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5106 E-mail: carswell.customerrelations @thomsonreuters.com Website: www.carswell.com One Corporate Plaza 2075 Kennedy Road Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media Karen Lorimer Publisher/Managing Editor Todd Humber Lead Editor Jeffrey R. Smith Assistant Editor Mallory Hendry Contributing Editors Liz Foster Liz Bernier Marketing & Audience Development Manager Robert Symes rob.symes@thomsonreuters.com (416) 649-9551 Circulation Co-ordinator Keith Fulford keith.fulford@thomsonreuters.com (416) 649-9585 CSR | June 2016 | News WEBINARS Interested in learning more about safety and HR issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as building strong safety leadership, engaging managers and supervisors to ensure OHS compliance, and building a better joint health and safety committee. Visit www.cpdcentre.ca/cos for more information. Lack < pg. 5 Worker disagreed with WSIB on restrictions

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