The employee used a previous injury, and the long-term medical restrictions it placed him under, as a tool to avoid the jobs he didn’t want to do. Management finally called him on his refusal.
A worker at a city-operated homeless shelter was fired when he failed to return to work as directed. The employer said the worker had abandoned his job. The worker said that the job did not adequately accommodate his permanent restrictions.
Designated a Client Service Worker (CSW), L.P. began at the shelter in 1988. CSWs are frontline workers responsible for maintaining order in the shelter and facilitating access to services for the homeless.
The main shelter provides beds for up to 580 homeless men. The organization also provides addiction and mental health treatment services at a couple of satellite locations.
As a result of an altercation with a client, L.P. sustained a work-related back injury in 1996. L.P returned to work two and one-half years later with a permanent impairment and some restrictions on the job tasks that he could perform. L.P. was not to lift weights over five kilos. He was to refrain from bending or twisting and to avoid restraining aggressive clients.
The employer made numerous attempts to identify a suitable job for L.P. However, L.P. raised concerns about the suitability of the jobs offered to him.
The need to be insulated as much as possible from potential physical encounters with clients was a preoccupation for L.P. He also had concerns about the physical demands of the jobs offered to him.
L.P. pursued his concerns with the compensation board. He pressed appeals on his original claim and then on subsequent claims related to alleged re-injury. He also disputed board findings on the suitability of the jobs offered to him.
Grievor “very litigious”
In addition to pursuing numerous actions with the compensation board, L.P. had also advanced numerous grievances on his own behalf. He had several health and safety complaints on file with the labour board, along with a complaint against his union and numerous issues on file with the provincial human rights commission.
L.P. was “very litigious” according to the Arbitrator. To the employer, L.P. was “allergic to work” and prone to claiming a disability when assigned work not to his liking. From L.P.’s perspective, he was being discriminated against on the basis of a disability and treated in a punitive manner by the employer for standing up for his rights.
In 2001, L.P. raised concerns about the risks to him because of a lack of security. In response, he was transferred from a posting that he liked at one of the smaller satellite treatment facilities to Centre Island (CI) — the secure, glassed-in booth at the front of the main facility. From Centre Island, CSWs monitor the entrance and electronically control access to the building.
L.P. considered the reassignment punitive. In September 2002, while working in CI, L.P. claimed that he reinjured his back reaching for a file.
Off work until January 2003, L.P. was nevertheless granted compensation for one week only. He appealed that ruling.
On his return in January, L.P. was assigned to light duties in a second floor office at the shelter. He complained that the assignment did not afford the security he required in order to ensure that he had no physical encounters with residents and that certain of the associated job tasks were beyond his physical limitations.
Compensation claim denied
In September 2004, he said he injured his back again doing the office job. His claim for compensation was denied.
Efforts to accommodate L.P. in another job were underway when a decision from the compensation board denied L.P.’s claim and found that the office job was within his restrictions.
With that information, the employer then pushed for an analysis to determine whether or not the CI job was within L.P.’s restrictions. It was. The employer took the offer of a new job off the table and L.P. was instructed to return to work at the CI post.
L.P. failed to show. He wrote to the employer alleging that he was being discriminated against. He was instructed again to report to work and warned that failure to show would result in termination. L.P. did not show and he was fired.
The CI job was suitable, the Arbitrator said. It was within the range of L.P.’s physical restrictions and his stated concerns about his safety and security were overblown.
That L.P. hated the posting was another matter. It was abundantly clear that the relationship between L.P. and the employer was acrimonious, the Arbitrator said.
Employer plays “hardball”
“No doubt, the employer tired of cutting [L.P.] slack and, by the end of these events, was no angel. Based on the various [compensation board] decisions rejecting [L.P.’s] claims, [the employer] began playing hardball.”
The employer offered L.P. the CI job knowing full well that he disliked it and that he might reject it, the Arbitrator said.
“But none of the Employer’s conduct was impermissible. While some of its decisions may well have aggravated the animosity and tension between it and [L.P.], none of it breached its legal obligations under the collective agreement, the [compensation Act], or the Code. L.P., on the other hand, did breach his legal obligations. He refused to co-operate in his return to work, which is an essential legal requirement, both in the [compensation Act] scheme and in the general arbitral law.”
L.P. was his own worst enemy, the Arbitrator said. “[T]he dominant narrative for these events, for many years, has been [L.P.’s] negative attitude, often self-defeating, in the work he has been assigned. I agree that he sought to use his restrictions to reject jobs that are suitable in order to negotiate a position he preferred. This is not the purpose of the legal scheme: contractual, statutory or Code based and a strong message needs to be sent to prevent employee abuse of the employer’s obligation.”
The grievance was dismissed.
Reference: City of Toronto and Canadian Union of Public Employees, Local 79. Dana Randall — Sole Arbitrator. Michael Martosh for the Employer and Douglas J. Wray for the Union. April 1, 2011. 23 pp.
