Whatever gets you through the night

There’s no failure to accommodate if an employee doesn’t provide sufficient information

Whatever gets you through the night
Stuart Rudner

By Stuart Rudner and Anique Dublin

In the recent case of Unifor Local 252 v Nestle Canada Inc.an Ontario arbitrator held that “an employer’s duty to accommodate is not triggered by an employee’s subjective belief that they require accommodation.”


Talat Khan was employed by Nestlé Canada as a millwright. On March 15, 2018, Khan was advised that he would be moved from day shifts to night shifts commencing April 10, 2018. According to the maintenance manager, Remi Osisanwo, upon being notified of this change, Khan became belligerent and visibly annoyed. He called Osisanwo an “idiot,” ripped up the letter and dropped it in the garbage. 


On April 10, 2018, Khan showed up for the afternoon shift despite being told that he was to commence working the night shift. As a result, he was called into a meeting with his team leader who advised him he could remain on the afternoon shifts for the remainder of the week but he was expected to commence night shifts on April 16, 2018.


On April 16 and 17, Khan showed up for the afternoon shifts. On both days, he was told he was expected to leave and return that night for the night shift. However, Khan did not report for the night shifts on April 16, 17 or 18, and did not telephone his employer to let them know he would not be coming in. As a result, he was suspended for three days. Upon being notified of the suspension, Khan flung the notice of suspension across the table, called it “bullshit” and walked out of the meeting. 


On April 23, 24 or 25, Khan again failed to report for work or call to advise that he was not coming in. Therefore, on April 25, he was asked to attend a grievance meeting to discuss his three-day suspension. During that meeting, he advised his employer for the first time that he had a medical condition that made it impossible for him to work the night shift. 


Nestlé conducted an investigation into Khan’s fitness to work night shifts, which included receiving and reviewing medical information from his doctor. Nestlé concluded that the medical information did not support the conclusion that Khan could not work night shifts. 

Consequently, on May 14, 2018, Khan was suspended for five days for failing to report for work. Khan was expected to return to work on May 24, but when he failed to do so, his employment with Nestlé was terminated. 


As a result, Khan brought a grievance against Nestle. At the hearing, the union argued that Khan was medically unable to work night shifts and Nestlé had an obligation to seek additional medical information before terminating his employment.  


The arbitrator disagreed, and held that in “the absence of any uncertainty or of any information requiring clarification,” an employer is not required to seek additional information before terminating the employee. In this case, Nestlé had already concluded that Khan was capable of working night shifts and they did not have any uncertainty in this regard. The arbitrator held that if Khan continued to insist he was incapable of working night shifts, the onus was on him to provide additional information supporting that claim. 


Relying on the decision in Renaud v Central Okanagan School District, the arbitrator held that “even if (Khan) personally believed he was incapable of working night shifts because of his medical condition, that personal belief, in and of itself,” was not enough. Therefore, Khan was required to provide Nestlé with a reasonable amount of information in order to allow them to assess whether and how he could be accommodated.      


The arbitrator also held that “an employee’s unsubstantiated claim that they are unfit for work (or unfit for a specific shift) does not justify an ongoing unauthorized absence.”  Relying on the decision in Baber v York Region District School Board, the arbitrator concluded that in order to trigger the duty to accommodate, Khan was required to first establish that the requirement to work night shifts had an adverse impact on him because of his disability. That did not happen. 


The arbitrator concluded that Nestlé was justified in terminating Khan’s employment for the following reasons:


  • Nestlé’s instructions were clear and unambiguous. The arbitrator concluded that Khan was told and understood that he was expected to show up for his night shifts. 


  • Nestlé suffered harm that was more than trivial. Khan’s failure to show up for work had a financial impact on Nestlé because it had to pay Khan’s colleague’s for working additional hours. There were also safety implications because the workers were required to work additional hours. 


  • Khan did not acknowledge or take responsibility for his actions. At no point leading up to his termination did Khan ever give an indication that he believed he had engaged in any misconduct. Instead, he maintained the misconduct despite a clear record of progressive discipline. 


As such, the arbitrator dismissed the grievance because there was no evidence to suggest that Khan would not continue with the misconduct.   

Anique Dublin is a law clerk and billing clerk at Rudner Law in Toronto.

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