Worker’s restrictions on file didn’t indicate he couldn’t perform assignment and he had done similar duties before
An Ontario worker’s work refusal had little to do with concern over safety risks from medical restrictions and more to do with him not liking his assignment, an arbitrator has ruled.
Frank Czajkowski, 53, was an employee of the City of Hamilton, hired in 1990 to be an operator in the roads and maintenance section of the city’s public works department. His job involved various tasks such as grass-cutting, litter-picking, repairing potholes, hauling garbage, and other various maintenance jobs. Czajkowski and his co-workers were assigned specific duties from this list at the beginning of each day.
Czajkowski had a series of injuries and illness that affected his ability to work since 1993, particularly back problems. In 2006, he had a heart attack. As a result of these problems, Czajkowski worked with permanent restrictions such as limited bouncing and vibration on his lower back, no sitting for longer than one hour, limited twisting, bending or squatting, no repetitive lifting greater than 25 pounds, and only occasional lifting of 50 pounds.
As part of its accommodation efforts, the city purchased a back support for Czajkowski that he could use when driving trucks. The city’s dump trucks had air-ride seats — seats that use compressed air to reduce shock and vibration so they weren’t a problem, but other trucks had bench seats.
In 2010, Czajkowski returned to work after being off for a time due to back issues. A return-to-work specialist had concerns about Czajkowski performing litter-picking due to the frequent bending and twisting required. The city responded by providing him with long-handled tools so he could pick up litter and stay within his restrictions. Over the next two years, Czajkowski sometimes worked at litter-picking duties with the tools.
In late March 2012, Czajkowski drove a truck with a bench seat on pothole and alleyway crews. At the beginning of the following week, April 2, he was assigned to haul garbage in a dump truck. He requested a newer vehicle than the one he was assigned because his back and leg were bothering him, so a different truck with a better seat was assigned to him.
The next day, April 3, Czajkowski was assigned to a two-member crew picking litter in alleyways. This was the first time since his return to work that he had been assigned to exclusively pick litter, as before he had been given general alleyway assignments of which picking litter was only part of the duties. Czajkowski came into his supervisor’s office with a union steward to say he was refusing to perform the work under the Occupational Health and Safety Act, because his restrictions required a truck with an air-ride seat and no manual labour. The supervisor checked Czajkowski’s file and found no reference to air-ride seat restrictions, and Czajkowski said the Workplace Safety and Insurance Board (WSIB) would have the restrictions on record.
Czajkowski confirmed he was still refusing his assignment for the day and was sent home without pay, as everyone else was on the road and there were no other duties available. He was later suspended for one day and Czajkowski grieved the suspension, arguing he was sent home due to the city not accommodating him as previously agreed to. It was his understanding that since 2010, litter-picking was outside his restrictions and he was supposed to avoid vehicles without air-ride seats because of a 2007 memo from an orthopaedic surgeon — though he had driven vehicles without air-ride seats frequently since his return to work.
Worker a no-show after being sent home
The supervisor expected Czajkowski back at work the next day, with any additional information from the WSIB if possible, but Czajkowski didn’t show or provide additional information on his restrictions. Czajkowski called the WSIB and told them he was sent home and suspended for refusing to work. Because he was upset, he told them he always drove a truck with an air-ride seat. This wasn’t true, but he was appealing the matter with the WSIB because of the 2007 memo that said he should avoid vehicles without air seats due to his worsening chronic back pain.
Czajkowski also claimed he had been suffering from pain for a few days before his work refusal, though he didn’t see a doctor and didn’t see his chiropractor until two weeks later.
Czajkowski didn’t return to the workplace until May 10, when the WSIB convened a meeting to try to settle his work restrictions. Before then, Czajkowski had no contact with his supervisor and the supervisor didn’t try to inquire as to why he wasn’t at work. Czajkowski was considered absent without leave during this time and wasn’t paid.
At the meeting, it was confirmed Czajkowski’s restrictions allowed him to do occasional litter-picking and he would be able to return to work “as of May 11/12,” or after he saw his doctor. It was agreed Czajkowski would contact the city if he was returning, and Czajkowski said he had things to do on May 11 and it would come back the following Monday, May 14. The supervisor told him he was expected back at work the next day, and told him “see you tomorrow.”
Czajkowski didn’t return the next day as he said he had phone calls to make, including to the WSIB return-to-work specialist. However, there was no evidence he made any calls that day. Czajkowski then realized he had already booked vacation for the week of May 14-18, so he didn’t return to work until May 22, after the Victoria Day weekend.
On June 5, the city suspended Czajkowski for five days. The suspension letter cited the April 3 work refusal along with his absence from April 3 to May 10 and his refusal to return to work on May 11. Czajkowski grieved this suspension as well.
After serving the suspension, Czajkowski returned to work and often worked in trucks without air-ride seats and performed litter-picking. He later testified he just “sucked it up” instead of refusing work, since he was appealing the WSIB’s decisions on his restrictions. He claimed his back got worse and he stopped working in January 2013. The next month, he was terminated along with a large number of other roads employees over activities discovered when they were put under surveillance in November 2012.
Worker didn’t seek treatment
The arbitrator noted that although Czajkowski claimed he was in pain at the start of that week when he refused work, he didn’t see his doctor or chiropractor. He also didn’t call in sick or file a WSIB claim — “a procedure with which he was familiar,” said the arbitrator. In addition, Czajkowski had made a request for a change the previous day and could have done it again, but instead he immediately announced he was refusing the assignment.
“Had he been in pain (on April 3, 2012), he might have been expected to make some reference to it,” said the arbitrator. “In the absence of any evidence to the contrary, I conclude that his work refusal on April 3 was motivated by his dislike of his assignment rather than any increased pain he was feeling , or any fear for his health and safety.”
The arbitrator also found there was no evidence Czajkowski contacted the Minister of Labour after his work refusal — at least not until after the WSIB rejected his claim that his April 3 assignment was outside his restrictions. He also didn’t produce any medical evidence of additional restrictions, which his supervisor had asked him for. Based on the evidence the city had, Czajkowski was not restricted from doing the assignment he had refused.
In addition, there was no reason for Czajkowski not to show up for work over the next month, said the arbitrator. Though the city should have tried to contact him or warn him of discipline, Czajkowski was at fault for failing to attend work. Even then, the city didn’t terminate his employment until after it met with him to try to arrange a return to work. When Czajkowski didn’t return on May 11, it was likely he simply didn’t want to come back for one day before his vacation and he lied about having to make some calls that he didn’t actually make, said the arbitrator.
The arbitrator determined Czajkowski’s work refusal on April 3, 2012, “was neither based on an honestly held belief that his health or safety was in jeopardy, nor was it objectively reasonable.” The one-day suspension he was given was justified. The arbitrator also found there was no good reason why Czajkowski didn’t return to work after that, and the five-day suspension was appropriate.
Finally, the arbitrator found that while the November 2012 misconduct for which Czajkowski was fired while he was off work wasn’t sufficient just cause by itself, the two suspensions he already had were legitimate and together made termination appropriate.
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