Employer argues worker 'didn't cooperate' and refused to take offered shifts
A worker recently filed his claim in arbitration after claiming that his employer failed to provide adequate accommodation for his return after a medical leave.
The employer, a security provider, supplies security staff to perform services as required by its customers. The worker, in this case, was employed to provide security services at Petro Canada, working 40 hours per week with a seniority date of October 1, 2014.
According to records, the worker went on sick leave on November 22, 2019. Afterward, he provided medical notes extending his medical leave in February, June, August, September and November 2020.
Worker failed to return to work
He then tried to return to work on April 6, 2020, without medical clearance. The worker sought accommodation, but the employer requested a Functional Abilities Form (FAF) to be completed by a physician.
Later, the FAF was completed by the worker’s physician, which indicated that “he was fit to return to regular full-time hours with restrictions on sitting, bending, twisting, shoulder activity, no exposure to cold, and avoidance of high-stress work environments.”
There is also a restriction on stair climbing of up to 5 steps. There are no restrictions on driving or night shifts.
On March 3, 2021, the worker turned down a job that was within his restrictions in Toronto due to the time it would take to drive to it. He refers to his request and “doctor recommendations” (which were not proved) about only working in the west end near Hamilton.
Soon after, the worker told the employer that he was “frustrated with the time it [was] taking to find him a job and [requested] that the employer lay him off.”
The employer once again tried to offer him another job within his restrictions in Brampton which he turned down due to the driving time involved.
He was then offered another job in Mississauga, which was within his restrictions, but was turned down because “it was not in his self-imposed restricted area of the Hamilton region and involves night work.”
At this time, he repeated the issue of a layoff since no jobs had been found for him. The employer told him that it “would not lay him off since there were positions available within his restrictions.”
After a few days, the worker refused to participate in a return-to-work meeting with the employer and the union “due to anxiety.”
A series of correspondence took place, and the worker refused the opportunity to facilitate communication between his physician and the employer regarding clarification of his restrictions.
In danger of termination
On April 2, 2022, the employer sent a notice to him that he was “in violation of the collective agreement obligation to work one shift every 60 days and advised him he was in danger of having his employment terminated.”
The worker was reportedly “upset” and said the employer was “trying to get him to resign.” Despite several offers from the employer, the worker declined positions within his restrictions, including issues related to driving time and location preferences.
The worker’s union argued that the worker cooperated as best he could in the accommodation process, facing challenges in finding a suitable position that met medical restrictions, location preferences, and pay rate expectations.
Meanwhile, the employer said that it tried to find positions within the worker's limitations and ultimately succeeded. The employer also noted the worker's failure to properly cooperate in the accommodation process.
Employer’s duty to accommodate
According to the arbitrator, the case is about whether the employer complied with its duty to accommodate the worker on his return to work, with restrictions, from a medical leave.
“The case law is clear that the employer’s duty is to accommodate the [worker] to the point of undue hardship. This requires an individualised assessment of [his] situation and a good faith search for positions which the [worker] is capable of performing with the limitations imposed by the treating physician,” the decision said.
However, the arbitrator said the worker “also has a responsibility to cooperate with the employer in the accommodation process.”
“This generally involves providing information concerning medical restrictions as and when required and accepting positions offered that are within the medical restrictions imposed by the treating physician. The accommodation is to be reasonable, not perfect,” it said.
“This means that the [worker’s] preferences must give way to reasonable offers of re-employment within the [worker’s] medical restrictions.”
In this case, the [worker] did not comply with his duty to cooperate with the accommodation process. “He failed or refused to provide the FAF when requested and failed or refused to attend some return-to-work meetings,” it said.
Worker ‘not medically cleared’
Furthermore, the arbitrator said that the “employer was under no obligation to put [him] back to work because he was not medically cleared to do so.”
“He was only cleared to do so in February 2021, and as noted above, all the jobs offered to him after that time were within his medical restriction noted in the FAF.”
It also found that the employer offered multiple opportunities for shifts, but the worker refused. Thus, it said that the employer did not violate its duty to accommodate him to the point of undue hardship.
“It is also obvious that the [worker] failed in his duty to fully cooperate with the employer’s attempts to accommodate him.” His claim was consequently dismissed.
