Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2018 April 25, 2018 | Canadian Employment Law Today ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www.employmentlawtoday.com for more information. CREDIT: TORONTO-IMAGES.COM/SHUTTERSTOCK her is was suspending disability benefits pending a review of the circumstances sur- rounding her absence. Subsequent communication led to the TTC requiring the worker to attend a meeting on July 10 to discuss her re- fusal to participate in the accommoda- tion process, violation of the settlement agreement, and her current sick absence. However, the worker didn't attend due to illness, so it cancelled and rescheduled it for July 20. e worker asked to postpone the meeting until she was fit to work, but her request was denied. e worker refused to attend the July 20 meeting and wrote a letter stating that her absence was supported and further medi- cal information hadn't been requested. She accused the TTC of "further harassment and intimidation" and threatening her with dismissal while off sick with a certified sick form from a doctor. Another meeting was scheduled for Aug. 5, but the worker refused to attend this one as well. As a result, the TTC relieved her of duty for insubordination, failing to attend the meetings, breaching her conditions of reinstatement, failing to participate in the accommodation process, falsely claiming she was totally disabled, and abandoning her employment. She was ordered to at- tend a step one meeting and if she didn't at- tend, her dismissal would be upheld. e worker again requested the step one meeting be postponed until she was fit to work. e TTC refused, since the basis for the meeting and relieving the worker of duty was "inconsistent information the TTC has in possession" regarding her med- ical circumstances and ability to work. e worker didn't attend any further meetings with the TTC, but didn't provide any information indicating she was unfit to attend a meeting or when she might be able to attend. On Aug. 26, 2016, the TTC dismissed the worker. e union grieved the dismissal, arguing the TTC didn't have medical evidence to prove the worker's symptoms were inconsistent with her at- tendance at the hearing and her conduct wasn't enough to warrant dismissal. e arbitrator found that the worker "demonstrated a pattern of accusing every- one with whom she came in contact with and with whom she disagreed of humili- ating and harassing her and undermining her dignity while she in making those ac- cusations had no regard for the dignity of others." e worker accused everyone — TTC management, the union, the ministry investigator — of harassing her, and this hurt her credibility for the arbitrator. In ad- dition, her "unsubstantiated allegations of a hazardous workplace" also called her ac- counts into question. e arbitrator agreed that the worker suffered from anxiety and depression, but also found the worker "used and abused her illness in an unjustifiable and untruth- ful manner" in her dealings with the TTC. For example, she claimed she needed to re- cord meetings because of her disability, but this was false. She also claimed she couldn't attend the meetings, but provided no med- ical evidence that she couldn't — and she was able to represent herself at the human rights tribunal hearing. e arbitrator found the TTC had a good reason to wonder if the worker's claim for total disability was true, given her tribunal appearance. But when it tried to get to the bottom of things, the worker thwarted ev- ery attempt by not providing information and refusing to attend meetings. is was compounded by the worker's inconsistent claims to the arbitrator — sometimes say- ing she never told anyone she couldn't at- tend meetings due to her medical condi- tion, and sometimes saying she never told anyone her condition prevented her from attending. And on top of this, the worker remained "belligerent and unco-operative," the arbitrator said. e arbitrator determined that the TTC had just cause to dismiss the worker and dismissed the grievance based on the fol- lowing grounds: • e worker wrongfully refused to attend the meetings leaving the TTC with no other option than to dismiss her. • e worker's failure to attend the meetings was "insubordinate conduct and construc- tive abandonment of her position." • e worker falsely claimed sick benefits and was absent without good reason. • e worker recorded conversations con- trary to directions not to, which was fur- ther insubordination. For more information see: • ATU, Local 113 and Toronto Transit Commis- sion, Re, 2018 CarswellOnt 3853 (Ont. Arb.).

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