Bus driver not a fan of heavy pedal

Driver exercised right to refuse unsafe work, claiming new bus aggravated injuries from accident

This instalment of You Make the Call features a bus driver who claimed he was the victim of reprisals for refusing to drive a special bus for health and safety reasons.

Anthony James was a bus driver for the Toronto Transit Commission (TTC). In October 2001, he was in a car accident in which he injured his left knee and a knuckle on his left hand. As a result, he went on sick leave until May 2002.

When James returned to work, he was trained to drive the Nova bus, a bus that is wheelchair-accessible. However, shortly after completing the training, James exercised a work refusal under the Ontario Occupational Health and Safety Act, claiming it was unsafe for him to operate. He said driving the bus aggravated his knee and back. The TTC took him off Nova bus duty pending proper medical documentation.

James submitted medical documents that indicated driving the Nova bus put a strain on his left elbow, left knee, lower back, left hand and chest and the heavier pedals in the Nova bus aggravated arthritis in his right big toe.

After another sick leave in June 2002, James was “relieved of duty” for insubordination. The TTC agreed to reinstate him but transferred him to another division where Nova buses were not used.

James exercised his seniority to transfer back to the previous location, which was closer to his home, on Nov. 30, 2004. A fitness for work report indicated he couldn’t drive for more than four hours a day but there was no restriction on driving the Nova bus.

The TTC put James on alternate duties as a collector for eight hours a day. In December 2004, after he again said he couldn’t drive the Nova bus, the TTC told him he couldn’t be accommodated in that division because drivers couldn’t be assigned a particular bus.

To James, the alternate duties were a reprisal for his work refusal because he had to work eight hours a day. He submitted a new medical certificate regarding his foot problems, but the TTC did not accept it, saying the note was almost the same as the one James submitted in 2002. However, it offered to transfer him “without prejudice” back to the division without any Nova buses. James refused.

In February 2005, James signed up for two routes that had Nova buses. There were other routes, but James felt those two were best suited to his family needs. On his first shift back driving, he refused to take over a Nova bus from another driver. The TTC again offered him a transfer but James declined. In response, the TTC relieved him of duty, claiming it wasn’t possible to avoid Nova buses in that division. James was eventually reinstated but was told he had to work in a division where there were no Nova buses.

You Make the Call

Did the TTC put James at a health risk and punish him for his work refusal?
Did the TTC handle his medical situation appropriately?

If you said James didn’t suffer reprisals for his work refusal, you’re right. The eight-hour days were not a reprisal, the board said, because only his driving was restricted, not other duties. The board also found the alternate duties and transfer was “a genuine attempt to accommodate” his claimed condition.

The board noted the TTC offered to transfer James to another division where there were no Nova buses even though it wasn’t satisfied with his documentation. However, he refused and signed up for routes he knew would include Nova buses. This was contrary to the intent of the right to refuse unsafe work.

“Mr. James could not have had an honest belief that the TTC required him to do work that was unsafe when he knew the TTC did not require him to drive the Nova bus at all,” the board said. “The health and safety concern arose only because of Mr. James’ own choice of work assignment.”

The board found this was an “orchestrated work refusal” with no real safety concern. There was also no connection between the work refusal and the discipline, which was only implemented after James was offered a transfer. See James v. Toronto Transit Commission, 2008 CarswellOnt 8529 (Ont. L.R.B.).

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