Troublesome worker was on total disability leave, but refused to co-operate in employer’s attempts to confirm legitimacy of claim
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.
The worker started her job as a bus operator with the Toronto Transit Commission (TTC) on Sept. 7, 2006. Over time, TTC management found her to be a challenging employee 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 transitional 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. The 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 weekends were her days off, and her health and safety documentation indicated she couldn’t work on her off days. An investigation found no such documentation.
After her health and safety claim was rejected, the worker noted May 9 was Mothers Day, which also made it difficult for her to work. The TTC didn’t accept her argument. 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.
The 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 personnel. The acting manager asked her a question about her relief of duty but the worker refused to answer, so she was dismissed for insubordination on May 13.
The worker filed a report on May 15 accusing her supervisor of harassing her, disrespecting her, pushing her, and creating a hostile environment. She filed a second report accusing the acting manager of directing her to return to an environment where she was “bullied, discriminated in employment, humiliated, embarrassed and intimidated.” 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 legislation. The 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. The Ontario Ministry of Labour investigated and found that “the employer and the union have confirmed that multiple attempts have been made to contact the complainant for involvement in the process 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 accommodation 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.
The agreement also stated that if the worker displayed insubordinate or unprofessional conduct towards management or staff it would also result in discipline up to and including dismissal. In addition, she wasn’t to record any conversations with TTC staff or customers without their consent.
The 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 intimidated and was crying.
The worker asked to speak to the station supervisor and told him she was refusing to work under Bill 168. The manager gave her some time to compose herself and get a coffee, which she did. However, when she returned, she maintained her refusal. The 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.
The worker hadn’t met the station supervisor 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 ministry inspector was sent to investigate and determined there was no imminent danger to the worker. The 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 inspector acted professionally.
Total disability benefits
The worker called in sick the next day and on June 22 filed an application for sick benefits. The application included a note from her doctor saying the worker was first unable to work on June 19, the day after her refusal. The 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 refused to do so.
Though 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. The TTC felt her actions at the hearing were inconsistent with her claim that she was totally disabled, so it informed her is was suspending disability benefits pending a review of the circumstances surrounding her absence.
Subsequent communication led to the TTC requiring the worker to attend a meeting on July 10 to discuss her refusal to participate in the accommodation process, violation of the settlement agreement, and her current sick absence. However, the worker didn’t attend due to illness, so it cancelled and rescheduled it for July 20. The worker asked to postpone the meeting until she was fit to work, but her request was denied.
The worker refused to attend the July 20 meeting and wrote a letter stating that her absence was supported and further medical information hadn’t been requested. She accused the TTC of “further harassment and intimidation” and threatening her with dismissal while off sick with a certified sick form from a doctor.
Another meeting was scheduled for Aug. 5, but the worker refused to attend this one as well. As a result, the TTC relieved her of duty for insubordination, failing to attend the meetings, breaching her conditions of reinstatement, failing to participate in the accommodation process, falsely claiming she was totally disabled, and abandoning her employment. She was ordered to attend a step one meeting and if she didn’t attend, her dismissal would be upheld.
The worker again requested the step one meeting be postponed until she was fit to work. The TTC refused, since the basis for the meeting and relieving the worker of duty was “inconsistent information the TTC has in possession” regarding her medical circumstances and ability to work.
The worker didn’t attend any further meetings with the TTC, but didn’t provide any information indicating she was unfit to attend a meeting or when she might be able to attend. On Aug. 26, 2016, the TTC dismissed the worker. The union grieved the dismissal, arguing the TTC didn’t have medical evidence to prove the worker’s symptoms were inconsistent with her attendance at the hearing and her conduct wasn’t enough to warrant dismissal.
The arbitrator found that the worker “demonstrated a pattern of accusing everyone with whom she came in contact with and with whom she disagreed of humiliating and harassing her and undermining her dignity while she in making those accusations had no regard for the dignity of others.” The worker accused everyone — TTC management, the union, the ministry investigator — of harassing her, and this hurt her credibility for the arbitrator. In addition, her “unsubstantiated allegations of a hazardous workplace” also called her accounts into question.
The arbitrator agreed that the worker suffered from anxiety and depression, but also found the worker “used and abused her illness in an unjustifiable and untruthful manner” in her dealings with the TTC. For example, she claimed she needed to record meetings because of her disability, but this was false. She also claimed she couldn’t attend the meetings, but provided no medical evidence that she couldn’t — and she was able to represent herself at the human rights tribunal hearing.
The arbitrator found the TTC had a good reason to wonder if the worker’s claim for total disability was true, given her tribunal appearance. But when it tried to get to the bottom of things, the worker thwarted every attempt by not providing information and refusing to attend meetings. This was compounded by the worker’s inconsistent claims to the arbitrator — sometimes saying she never told anyone she couldn’t attend meetings due to her medical condition, and sometimes saying she never told anyone her condition prevented her from attending. And on top of this, the worker remained “belligerent and unco-operative,” the arbitrator said.
The arbitrator determined that the TTC had just cause to dismiss the worker and dismissed the grievance based on the following grounds:
• The worker wrongfully refused to attend the meetings leaving the TTC with no other option than to dismiss her.
• The worker’s failure to attend the meetings was “insubordinate conduct and constructive abandonment of her position.”
• The worker falsely claimed sick benefits and was absent without good reason.
• The worker recorded conversations contrary to directions not to, which was further insubordination.
For more information see:
• ATU, Local 113 and Toronto Transit Commission, Re, 2018 CarswellOnt 3853 (Ont. Arb.).
