Canadian Employment Law Today - sample

Disabled worker fired for insubordination, failure to co-operate Troublesome worker was on total disability leave, but refused to co-operate in employer's attempts to confirm legitimacy of claim BY JEFFREY R. SMITH T he worker started her job as a bus operator with the Toronto Transit Commission (TTC) on Sept. 7, 2006. Over time, TTC manage - ment found her to be a challenging employ- ee to deal with, so they took "extra caution and steps to ensure (she) was treated fairly in all areas." By 2015, the worker was in a transition- al work placement program and, since she was the most junior employee in the program, a schedule change resulted in her being scheduled to work on May 9. e worker complained to her supervisor that he had conducted an "illegal sign up contrary to the collective agreement" and he hadn't advised her in advance of the change to her days off. She also said week- ends were her days off, and her health and safety documentation indicated she couldn't work on her off days. An investi- gation found no such documentation. After her health and safety claim was re- jected, the worker noted May 9 was Moth- ers Day, which also made it difficult for her to work. e TTC didn't accept her argu- ment. However, the worker didn't report for work on May 9 and three days later she was relieved of duty for failing to report for her assigned duties. e TTC held a step one grievance meeting with the worker, where the worker asked to be allowed to record the meetings "due to her disability." However, it turned out her claim that she needed to record the proceedings because of her disability was false and she had been formally told not to record meetings or calls with TTC person- nel. e acting manager asked her a ques- tion about her relief of duty but the worker refused to answer, so she was dismissed for insubordination on May 13. e worker filed a report on May 15 ac- cusing her supervisor of harassing her, dis- respecting her, pushing her, and creating a hostile environment. She filed a second re- port accusing the acting manager of direct- ing her to return to an environment where she was "bullied, discriminated in employ- ment, humiliated, embarrassed and in- timidated." She said she had refused to go to work on her off day for her health and safety and her refusal was covered under Bill 168, Ontario's workplace violence leg- islation. e worker also made allegations against a payroll clerk for acting hostile and angry towards her, causing her stress, mental anguish, and anxiety. Finally, the worker filed a complaint under Ontario's Occupational Health and Safety Act alleging workplace violence and harassment tied to her work refusal. e Ontario Ministry of Labour investi- gated and found that "the employer and the union have confirmed that multiple attempts have been made to contact the complainant for involvement in the pro- cess but that a meeting has not yet been completed." No order was issued to the TTC from the ministry's investigation. Reinstatement with conditions Despite its difficulties with the worker, the TTC reinstated the worker on June 18, subject to a settlement agreement that the worker would be placed in a transitional work placement in accordance with her medical restrictions, as part of the ac- commodation process. She was expected to accept any hours of work and off days assigned to her during her placement and any failure to co-operate would subject her to discipline up to and including dismissal. e agreement also stated that if the worker displayed insubordinate or un- professional conduct towards manage- ment or staff it would also result in dis- cipline up to and including dismissal. In addition, she wasn't to record any conver- sations with TTC staff or customers with- out their consent. e TTC and the union agreed to the terms and conditions, though the worker claimed she didn't understand it because neither explained it to her. However, she reported to work the next day as indicated in the agreement, though she said it was because she was afraid of losing her job. When she arrived she said she felt intimi- dated and was crying. e worker asked to speak to the station supervisor and told him she was refusing to work under Bill 168. e manager gave her some time to compose herself and get a coffee, which she did. However, when she returned, she maintained her refusal. e station manager arrived one hour later and asked if he could describe the work planned for her, but the worker insisted she wanted to invoke a work refusal. e worker hadn't met the station su- pervisor before, but she accused him of intimidating and harassing her by talking meanly to her and trying to force her to work. Because of the work refusal, a min- istry inspector was sent to investigate and determined there was no imminent danger to the worker. e worker became upset, accused the inspector of being rude to her and left, saying she wasn't going to return the next day. However, TTC management felt both the supervisor and ministry in- spector acted professionally. Total disability benefits e worker called in sick the next day and on June 22 filed an application for sick benefits. e application included a note from her doctor saying the worker was first unable to work on June 19, the day after her refusal. e doctor went on to say the worker had been diagnosed with a work-related anxiety mood disorder and her return date was unknown, adding that a psychologist had advised the worker to look for another job but the worker re- fused to do so. ough she was on disability benefits, the worker attended a three-day hearing of her harassment complaint at the Ontario Human Rights Tribunal and represented herself. e TTC felt her actions at the hearing were inconsistent with her claim that she was totally disabled, so it informed 4 Canadian HR Reporter, a Thomson Reuters business 2018 CASE IN POINT: ACCOMMODATION AN ONTARIO transit worker who had a disability made it too difficult for her employer to continue to employ her because of insubordinate conduct, a failure to participate in the accommodation process, and not co-operating in the employer's attempts to determine the legitimacy of her total disability claim, an arbitrator has ruled. BACKGROUND

• Cover