An arbitrator has upheld the dismissal of an employee who tried
to use the Occupational Health and Safety Act's work
refusal provisions to avoid undesired work assignments.
The employee worked for the City of Hamilton cutting grass,
picking litter and doing road maintenance. He had a long history of
illnesses and accidents and had certain work restrictions. On
one particular day, the employee refused to pick litter on the
basis that his truck did not have an air-ride seat which he said
was required by his work restrictions. The employee then
failed to attend for work for several weeks afterwards. After
another incident later in the year, the employer dismissed the
The union grieved the dismissal. The arbitrator decided that the
work refusal was motivated by the employee's dislike of the
work assignment rather than by any pain he was feeling or fear for
his health and safety. There was no indication that the employee
saw his physician or chiropractor due to the pain. He
did not call in sick, nor did he go off work and file a WSIB claim,
a procedure "with which he was well familiar". He
did not mention the OHSA on the date of his work refusal. He
did not contact the Ministry of Labour until two months later,
after the WSIB had determined that the work that he refused was
appropriate given his restrictions. Also, he had frequently
been assigned a vehicle without air-ride seats in the past and had
As such, the work refusal was not based on an honestly-held
belief that his health or safety was in jeopardy, nor was it
objectively reasonable. A one-day suspension was justified
for the work refusal alone.
Further, there was no good reason for the employee not to return
to work the next day, and his failure to do so justified an
additional five-day suspension. After he received another
suspension later in the same year, the employee's overall
discipline record justified his dismissal.
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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.
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