The work refusal provisions of the Occupational Health and
Safety Act should not be abused, an arbitrator
has effectively held in overturning an employee's
dismissal but refusing reinstatement.
The employee's work refusal complaint to the Ontario
Ministry of Labour had been made in bad faith, according to the
The employee worked as a plumber at a hospital. In January
2011, he engaged in a verbal exchange with another employee.
The employee alleged that the other employee threatened him.
The arbitrator decided that the employee's "honest belief
[that he had been threatened] graduated into an attitude of
increasing certitude, elevated worry, and finally rectitude.
That certitude and eventual rectitude blinded [the employee] to any
other possible view of the matter and led him to question the
motives and conduct of almost everyone around him."
The employee went on "stress leave". At some
point, he insisted on an immediate return to work. There was
a delay in his return because his doctor took time to get back to
the Hospital. The employee then responded by filing a work
refusal complaint with the Ministry of Labour under the
Occupational Health and Safety Act and sent an emotional
e-mail to the Hospital CEO the next day.
The arbitrator decided that the work refusal complaint was
"highly questionable". The arbitrator held
that it was not made in good faith in the sense that it was a
"reckless claim– intended to place additional pressure
on the Hospital." The Hospital had just cause to
impose discipline for making the work refusal allegation.
However, because the employee had five years of service and no
disciplinary record, the bad-faith work refusal was not enough to
dismiss for cause. But the arbitrator nevertheless decided
that he should not be reinstated: the employee was convinced that
numerous people had lied about him in the past and continued to lie
about him at the arbitration. He had two years to re-evaluate but
his position had only hardened. If he were reinstated, he
would "continue his quest for justice as he sees it".
Also, he had found permanent employment with another major public
sector unionized employer, which he judged to be equivalent or
superior to what he enjoyed at the hospital.
"But this just can't go on", the arbitrator
concluded, denying reinstatement that would only embolden the
employee to persist in further investigation until he was satisfied
with the result. The employee was instead awarded
approximately nine months' wages in lieu of reinstatement.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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