Suspension for refusing assigned work leads to altercation and dismissal for breach of company's violence and harassment policy
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.
An Ontario arbitrator has upheld the suspension and dismissal of a city worker who responded to the suspension with profanity and threats.
The 54-year-old worker was hired as a seasonal driver loader by the City of Toronto waste management department in March 2007. In July of that year, he suffered a knee injury and went on Workplace Safety and Insurance Board (WSIB) benefits until February 2009.
Before the worker returned to work he was laid off on Dec. 31, 2008. The union grieved the layoff and the city agreed to rescind the layoff and credit the worker with enough hours so he could participate in the work selection process for seasonal workers. 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.
The city acknowledged it did not provide 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 participated in the city’s work selection process for seasonal jobs as he was unable to find a job related to his diploma. The day before, he had obtained a return-to-work information 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 crouching 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.
The 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 assessment. The 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.
The 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 scheduled 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. The 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. There 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. The worker said he could not walk around on a litter beat because of his knees, so he was sent home for the day.
The city sent the worker a letter indicating his functional abilities form had not said he couldn’t perform litter collection on foot as long as he had breaks and it would require medical documentation for any further 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.
The worker provided the city with a letter from his doctor stating that during his functional assessment, the worker had only been required to walk for 12 minutes or 720 metres. 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-consecutive days and would be able to do the job if given the opportunity. The 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. The worker said he could not do the work, so he was told to wait while a manager was summoned. However, the worker found the union steward and went to meet with the general manager.
Work refusal leads to altercation
They all went to the manager’s office and the worker said the manager had the medical documentation. The manager asked him multiple times if he was willing to remove posters, and the worker refused to give an answer and kept saying he had the medical information, then said ‘you pull the trigger.” The manager decided the worker was refusing his assignment and told him he was suspended for one day.
The worker testified he felt he was being indefinitely suspended, so he approached the manager’s desk and loudly asked him if he wanted him to work there. The manager said yes, but the worker continued to ask if he wanted his resignation. The manager said no, but he wanted the worker to perform his assigned duties. The manager finally asked the worker to leave the workplace, and the worker left the office. As he exited the office, he loudly said “Go f--- yourselves and made an obscene gesture with both his hands at other supervisors nearby.
The worker went to his car in the employee parking lot, but drove back towards the office. He claimed he wanted to pick up his personal effects as he felt he had been terminated. However, he saw a supervisor standing near the door into the office along with the manager, who had come out to ensure the worker had left the workplace.
According to the supervisor and the manager, the worker stopped his car, got out and yelled profanities at them. He approached the supervisor, accused him of starting “all this,” and then said “I hope you drop dead from the bottle of rum my family sent you.” He had sent the bottle to the supervisor when the worker needed bereavement leave.
Before he left, the worker told them “I’ll be back and shoot you.” The manager and the supervisor were both shocked. The worker claimed he said “I will be back and I will show you,” but the videoclip appeared to show he said “shoot.”
The manager made a video of part of the incident with his cellphone. The video recorded the worker’s comments to the supervisor and swearing at both men, as well as “shoot you” comment. They took the comment seriously so the manager called the police, who spoke to the worker at his home. No charges were laid.
The city decided to suspend the worker indefinitely pending investigation of his conduct. Other supervisors and employees were interviewed and many indicated they had heard the worker shouting, swearing and making obscene gestures.
Management met with the worker on June 7 to get his side of things. It held the meeting in a location where corporate security was easily accessible in case the worker acted out again. On the advice of his own legal counsel, the worker responded “no comment” to every question they asked about the incident. This was due to the police investigation, but provided the city with no information from the worker.
The city dismissed the worker due to his breach of its workplace violence policy and the violence and harassment section of the Ontario Occupational Health and Safety Act, as well as his insubordination for refusing assigned work. In addition, since the worker was still on probation, the city felt it was within its right to dismiss him.
The arbitrator found the threat may have been made “in the course of a momentary flare up, but one cannot forget that the (worker) had been told to leave the workplace, had done so, and then returned in order to be more abusive and threatening.” There was no provocation for the threats, even if the worker was feeling frustrated, said the arbitrator.
The arbitrator also found the city conducted a fair and reasonable investigation and gave the worker an opportunity to explain himself. In addition, it operated within the functional abilities information it had for the worker and asked him for more medical information to support his refusal to do the assigned work. There was no indication of bad faith on the part of the city, and it was important to note that the worker had only been given a one-day suspension for refusing work initially. It was only after his abusive and threatening misconduct when the suspension became longer and ultimately led to the worker’s dismissal. The dismissal had nothing to do with his disability or WSIB claim, said the arbitrator in upholding the suspension and dismissal.
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