The grievor, who had suffered a brain injury, had been placed in several different jobs. He was unable to perform any in a consistent and safe manner. The arbitrator found that the company had accommodated him to the point of undue hardship.
Brain-injured as a result of an off hours assault, a disabled worker on long-term disability was unable to work safely over the course of four separate attempts to accommodate him in four different jobs.
The employer did not attempt another accommodation after the worker walked away from the fourth return-to-work attempt. The union grieved.
P.P. worked as a welder for a large auto parts manufacturer. He was hired in 1983. In 1991, P.P. sustained an injury to his wrist.
In September 1992, while receiving long-term disability benefits for his wrist injury, P.P. was attacked after leaving a licensed establishment. P.P.’s story was that he was beaten unconscious by a bouncer who was wielding brass knuckles.
As a result of the assault, P.P. suffered a significant brain injury. He was in a coma for four days and hospitalized for a significant time. P.P. undertook rehabilitation where he re-learned how to walk and talk.
In August 1995, the employer attempted to return P.P. to work as a Forklift Operator. However, that attempt was terminated before the month was out. P.P. frequently collided with stationary objects. He said it was unnecessary for him to look backwards while operating the forklift because he had special lenses in his glasses that allowed him to see backwards without turning around.
Unreceptive to input, easily agitated
In September 1997, the employer attempted to return P.P. to work as a welder. However, his productivity only approached 50 per cent of normal. P.P. complained the work aggravated his wrists. He had difficulty with instructions. He was unreceptive to input or coaching and was easily agitated. The second return-to-work attempt was terminated after about one week.
In August 1999, the employer attempted to return P.P. to work as a Stock Handler. The employer also engaged an onsite physiotherapist to assist with P.P.’s work hardening. P.P.’s job as a Stock Handler was to provide components to employees operating the machines at different stations throughout the plant. However, P.P. was unable to maintain sufficient concentration to manage the job. He became confrontational and threatened to assault a coworker. The third return-to-work attempt was terminated after five weeks.
In February 2003, the employer attempted to return P.P. to work as a Janitor. P.P. continued to exhibit unusual behaviours.
He was by turns aggressive, violent, bizarre and dangerous: Without provocation or justification, P.P. hit a coworker in the face with a glove. He was also caught on several occasions operating a forklift without authorization. Without permission and creating a considerable hazard, P.P. activated the plant’s 1,500 ton-capacity Heavy Stamping Press.
P.P. cut the crotch out of his work overalls because he claimed they were impeding his ability to climb stairs. On a number of occasions, he became extremely agitated and frustrated to the point that he threw objects around the plant when coworkers walked on floors that he had cleaned.
On July 25, 2008, P.P. reported to the plant’s health office and asked to go home. There were no further attempts to return him to work.
The union said that the collective agreement obligated the employer to return P.P. to work. The union also alleged that the employer’s failure to accommodate P.P.’s disability was a violation of the Human Rights Code.
The Arbitrator disagreed.
Danger to himself and to others
“[T]he Code does not require an employer to bring back to the workplace an employee whose disability makes him a danger to himself and to others; an employee, moreover, who has repeatedly demonstrated that there is no job within the workplace that he can safely be assigned to.”
The Arbitrator found that P.P. was a hazard in the workplace and that the risk of injury he presented to himself and to others was “substantial.”
This conclusion, the Arbitrator said, was based on P.P.’s past history, “which includes threatening and assaulting fellow workers, yelling at fellow employees, throwing things, etc; and … the expert evidence [of a psychiatrist engaged as an Independent Medical Examiner].”
The Independent Medical Examiner (IME) concluded that P.P. suffered from numerous cognitive deficits, including: difficulty with concentration; problems with brain functioning; inability to adapt to stressors; problems with episodic memory; problems with attention and concentration; and difficulty forming concepts.
The IME confirmed that such deficits would “most definitely” have the potential to negatively affect workplace safety.
“[I] have concluded that returning the Grievor to the workplace would involve a substantial likelihood of risk, not just to the Grievor, but to his fellow … employees, and that this risk is unacceptable given the Grievor’s employment history and the multi-dimensional nature of his disability. Therefore, I conclude that the risk of returning the Grievor [to the workplace] is too great,” the Arbitrator said.
The grievance was dismissed.
Reference: CAW Local 1524 and Lear Corporation. Ian A. Hunter — Sole Arbitrator. Jim Woods for the Union. Lorenzo Lisi for the Employer. Sept. 19, 2011. 37 pp.