Worker claimed harassment, but queries into restrictions were reasonable
An Ontario arbitrator has upheld progressively longer suspensions and the firing of a worker who challenged management and claimed he was harassed because of his physical restrictions.
Hartmann Canada operates a corrugated and solid fibre box manufacturing plant in Brantford, Ont. The worker was hired in 2009.
The worker suffered a workplace injury to his left shoulder in October 2017 while he was working as an electrician. After that, he worked modified duties to accommodate restrictions related to his shoulder.
In June 2019, the worker was injured in a car accident and had to go on short-term disability leave. While he was off work, he applied for a millwright position but Hartmann felt that he couldn’t be accommodated in that job. The union got involved and Hartmann gave the worker the millwright position with modified duties.
Between December 2018 and August 2020, the worker received two verbal warnings, two written warnings, and a one-day suspension for various reasons including failing to perform assigned tasks and taking an unauthorized break.
Longer suspensions
In March 2021, the worker was suspended for three days for failing to finish assigned tasks of rebuilding compression springs or performing preventative maintenance on some machinery. The worker claimed that some of his assigned duties conflicted with his physical restrictions and some of the equipment needed for other tasks were missing – he completed the latter once parts became available. The company sought medical clarification and an orthopedic specialist stated that the worker had restrictions related to using his left arm to lift, operate equipment, push or pull, or any repetitive movement.
In August that year, the worker was observed taking an unauthorized break at the start of his shift – he was seen smoking outside talking to another employee when he had been assigned to help post notice’s in the men’s locker room and reported 30 minutes late. According to the worker, he was taking a “pain break” for his shoulder before reporting for the assignment, although when he was questioned about it he acted in a confrontational manner and there was no medical documentation indicating that he needed such breaks.
Hartmann suspended the worker for five days. On the same day he received his suspension, he filed a harassment complaint against members of management alleging that they were harassing him in relation to his workplace restrictions. Hartmann’s president conducted an investigation into the complaint.
The company held a grievance meeting on Sept. 2 to address the harassment complaint and a grievance of the five-day suspension. According to management, the worker appeared agitated and started at the human resources manager and the president in a hostile way that made them uncomfortable. He also abruptly got up at one point and left.
Intimidating behaviour
After leaving the meeting, the worker approached the maintenance manager and the shift supervisor and aggressively asked the former if he was going to follow him to his car. The manager didn’t understand what he was talking about, although it was in reference to another employee who was fired and walked out to his car by management. The worker repeated the question and walked away, but the manager followed him because the worker appeared upset. The worker said “you are on the list as well,” got close to the manager, and called him “twitchy.”
The manager asked for clarification and the worker replied, “You f---s started this and you definitely are not going to like how this ends.” The manager asked if this was a threat and the worker said yes.
The worker claimed that the meeting had ended and he had until Oct. 2 to provide particulars about his harassment complaint. He said that the maintenance manager was looking at him with a furrowed forehead, so he approached him and said he looked like he wanted to walk him to his car. He denied coming close to the manager and when the manager asked if he was threatening him, he said, “No, you’re on the harassment list.”
The worker was sent home for the day and Hartmann reported the incident to the police. The police questioned the worker but didn’t lay any charges.
Culminating incident
Hartmann decided that the incident was a culmination of his past misconduct requiring discipline. Given his record of performance mistakes, taking unauthorized breaks, and not doing assigned work, the company deiced that he was not a productive employee. In addition, he seemed unwilling to change his behaviour and, if he was disciplined, he played the “restrictions card,” said the company.
The union grieved the three-day and five-day suspensions as well as the termination, arguing that Hartmann didn’t assist the worker with his restrictions and instead dismissed his concerns.
The arbitrator noted that the worker genuinely believed that the criticism of his job performance and the discipline he experienced was because of a lack of respect for and belief in his physical restrictions However, he had to show proof that he was treated adversely because of his physical restrictions, the arbitrator said.
The arbitrator found that there was no evidence of any harassment. The employer seeking clarification on his restrictions was reasonable as long as there were grounds for it and the employee’s privacy was respected, the arbitrator said, so the employer can safely and productively accommodate the worker. The worker’s claim that some of the duties he had been assigned were outside his restrictions gave Hartmann reason to clarify them, the arbitrator added.
Insubordination
Ultimately, the three-day suspension was justified because the worker didn’t complete his tasks or notify his supervisor that they weren’t finished, said the arbitrator. As for the five-day suspension, it was clear that the worker was not authorized to take “pain breaks” and he had not communicated that he needed one, leaving the task not completed. Failing to show up at the appointed time was insubordination which, given his past disciplinary record, was worthy of a five-day suspension, said the arbitrator.
The arbitrator also found that the worker’s behaviour at the Sept. 2 meeting and afterwards was inappropriate. Although he didn’t physically threaten the maintenance manager, it was “a blatant attempt to intimidate” him and also challenged the manager’s authority.
Looking at the worker’s prior discipline – demonstrating that Hartmann had followed progressive discipline - and his lack of acknowledgment of any wrongdoing, the arbitrator found that the employment relationship could not be repaired. All the grievances were dismissed and the termination was upheld. See Hartmann Canada Inc. v. United Steelworkers, Local 1-500, 2022 CanLII 126106.
