In a recent decision1, 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.
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
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
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.
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
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
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
1.City of Hamilton v. Canadian Union of Public
Employees, Local 5167 (Czajkowski Grievance),  O.L.A.A.
No. 74 (Slotnick).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This introductory level seminar will provide those new to human resources with an overview of the duty to accommodate, particularly with respect to disabilities, including when the duty arises and what it requires of employers, employees, and unions. We will also outline when the duty to accommodate ends, what it means to reach undue hardship, and what kind of requests need not be accommodated by employers.
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