Refusal of Work Not For Safety Reasons: Discharge For Just and Reasonable Cause Upheld

In a recent decision[1], Arbitrator Lorne Slotnick upheld the discharge of an employee who attempted to improperly use medical restrictions and the right to refuse unsafe work under occupational health and safety legislation as the basis for refusing a work assignment.

Background

The grievor, a municipal employee, had a long history of illnesses and accidents. His ability to work was subject to a number of permanent restrictions.

On April 3, 2012, the grievor refused to perform tasks assigned to him on the basis that they were prohibited by his medical restrictions and would exacerbate the pain he alleged to have. His supervisor, believing this to be without merit, treated the refusal as culpable and suspended the grievor from employment for the remainder of the day.

Following this, the grievor was absent for several weeks, an offence for which he received a one-week suspension upon his return to work. As a result of a later incident, he was discharged from employment.

Arguments

While the grievor’s general discipline record was in issue, the parties’ arguments focused chiefly on the grievor’s refusal to work.

The union argued that the grievor honestly and reasonably believed his work assignment to violate his medical restrictions and to be unsafe. The union argued that his actions did not warrant discipline.

The employer took the position that the grievor’s refusal to work was motivated by nothing other than the fact he did not like the assigned work and was simply using his restrictions and concerns as an excuse.

Decision

Arbitrator Slotnick agreed with the employer. He found the grievor to have used his medical restrictions improperly and for the purpose of attempting to avoid work that he did not like or to avoid work altogether. There was no basis for concluding that the grievor’s refusal was related to his restrictions, the pain he was allegedly experiencing or a reasonable concern about his health and safety.

In support of this conclusion, it was observed by the arbitrator that the grievor never actually took steps to seek medical attention for the pain he claimed to have been experiencing, he regularly performed the refused tasks, and the tasks had been modified to fit his requested accommodations.

In light of the arbitrator’s conclusion, and on the totality of the grievor’s record, the discharge was upheld.

Lessons For Employers

This case serves as a valuable reminder to employers and a useful resource where there are concerns that an employee may be utilizing his or her otherwise legitimate work restrictions inappropriately in order to avoid doing work that he or she would prefer not to do.

While employees generally have the right to refuse work which they honestly and reasonably believe to jeopardize their health and safety, and while they have the right to be reasonably accommodated in accordance with human rights legislation, employers are entitled to scrutinize any claims to those rights to ensure that the rights are being properly exercised. Employers are also entitled to discipline employees who attempt to avail themselves improperly of their rights.

However, as with any situation where an employer is dealing with health, safety and accommodation issues, employers should proceed very carefully and ensure they take into account all of the circumstances and have a complete understanding of the relevant facts and legal principles before proceeding to issue discipline.

[1] City of Hamilton v. Canadian Union of Public Employees, Local 5167 (Czajkowski Grievance), [2016] O.L.A.A. No. 74 (Slotnick).