Union couldn’t prove earlier incidents were caused by sleep apnea
A Saskatchewan arbitration board has upheld the dismissal of a worker who was fired for multiple incidents of sleeping on the job, finding the union didn’t provide sufficient evidence supporting the argument the incidents were caused by a medical disability.
Guy Hammond, 38, was a utility worker for the transit division of the City of Saskatoon, hired in 2008. He mostly worked the night shift, which involved cleaning, washing, maintenance on, and parking city buses after they returned from the day’s driving at 12:30 a.m.
Hammond’s shift ran until 7:30 a.m., though most of the work on the buses was completed by 4 a.m. with things quieting down until buses were prepared for the next day.
On June 10, 2008, while Hammond was still on probation, he fell asleep in the body shop. He admitted to management that he fell asleep and explained that it was because he had slipped and hurt himself during his shift, so he sat down to rest. He received a counselling letter that said sleeping during work hours was “inappropriate behaviour” and his performance would be monitored.
The counselling letter was the first step in the city’s progressive discipline process, which was traditionally followed by a reprimand, then one-day, three-day, and five-day suspensions.
On Oct. 9, 2011, Hammond was serving as the acting shift supervisor. However, several workers found him sleeping at his desk. He admitted to the city’s maintenance supervisor that he had fallen asleep doing paperwork. He said it was because he had trouble sleeping at home.
The maintenance supervisor suspended Hammond for one day without pay and gave him a letter saying his behaviour was “unacceptable and will not be tolerated.”
The letter concluded by saying similar misconduct in the future would result in more severe discipline, up to and including dismissal.
Hammond sought medical assistance and was referred for sleep apnea testing in January 2012. The Amalgamated Transit Union (ATU) informed the city about the referral but Hammond didn’t attend the testing.
On May 3, 2012, Hammond was again serving as the acting shift supervisor. A service supervisor found him sleeping, which led to another meeting with the maintenance supervisor. Hammond acknowledged it was inappropriate however, he said his roommates had recently moved out and he was able to sleep during the day, so it shouldn’t happen anymore.
Regardless, the maintenance supervisor suspended Hammond for three days without pay. The letter accompanying the suspension noted that sleeping at work compromised his ability to supervise other employees, raised safety issues, and provided a poor example. The letter concluded with the same note about future similar misconduct resulting in more severe discipline with the possibility of dismissal.
Four months later, on Sept. 16, 2012, another city transit employee found Hammond asleep in a chair. He didn’t wake Hammond up and instead left the office and told a co-worker about it. The two of them returned 30 minutes later to find Hammond still sleeping. The first employee decided to take a photo of him.
The maintenance supervisor learned of the incident and once again met with him. Hammond said he wasn’t feeling well and tried to sit back in a chair to feel better, but he didn’t suggest any medical reasons behind his sleeping on the job. The supervisor told him he couldn’t fulfill his work assignments, meet safety obligations, or attend to other employees when sleeping, so the city had lost confidence in his ability to supervise others. Hammond was suspended from performing supervisory duties for six months, during which he was required to participate in up to three training sessions. He was also suspended without pay for five days and warned that similar misconduct in the future could lead to dismissal.
The maintenance supervisor also encouraged Hammond to try working the day or afternoon shifts to see if it helped, but Hammond didn’t take him up on the offer.
However, he did finally undergo testing in March 2013 and was diagnosed with obstructive sleep apnea. Following the diagnosis, Hammond provided the doctor’s report and requested the city reimburse him for the suspensions. The city denied the request.
On June 11, 2014, the maintenance supervisor found three people lying in seats in the back of parked buses. One was awake and said he was taking a break, but the other two were asleep. One of the sleeping employees was Hammond. Hammond denied he was sleeping and said it was common practice for utility workers to sit on buses to relax during breaks. He said he had been in a reclined position in the seat but had not been sleeping.
While city management was determining the discipline for this latest incident, a body shop supervisor on June 26 found Hammond lying down in the back of a bus after several calls for the utility person on duty went unanswered. Hammond said he was not sleeping but the supervisor observed his eyes and face looked sleepy.
The city terminated Hammond’s employment on July 9, finding the two most recent sleeping incidents combined with his past misconduct “demonstrated a pattern of culpable behaviour that is within your control” and “caused irreparable damage to the employment relationship.”
The ATU grieved the dismissal, arguing Hammond’s sleep apnea was a medical disability that caused his sleeping at work and the discipline he received for it was discriminatory under human rights legislation and the collective agreement. It provided a doctor’s report that indicated Hammond was diagnosed with sleep apnea and was receiving therapy with a specialized machine. The report also stated that “daytime sleepiness and falling asleep during the day (despite adequate rest) can be caused by sleep apnea. Since I am not an expert, I am unable to say to what degree sleep apnea contributed to his symptoms” and he had stopped falling asleep at work since starting the therapy.
The ATU also argued there was no evidence to contradict Hammond’s claims that he wasn’t sleeping on the two occasions he was found in the back of a bus.
The three-member arbitration board agreed that obstructive sleep apnea was a disability. However, it found that Hammond’s diagnosis in March 2013 did not on its own provide sufficient evidence that it was related to Hammond falling asleep in 2008, 2011 or 2012. The doctor who diagnosed the condition was unable to say to what degree sleep apnea contributed to Hammond’s sleep issues.
The board also found Hammond’s denial of sleeping on the buses in the 2014 incidents wasn’t credible, as he wasn’t available on the radio and he specifically went to the back of the buses to lie down.
The board dismissed the grievance and upheld Hammond’s dismissal.
For more information see:
• Saskatoon (City) and ATU, Local 615 (Hammond), Re, 2017 CarswellSask 397 (Sask. Arb.).
