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 arbitrator.
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 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 email to the hospital CEO the next day.
The arbitrator decided 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, said the arbitrator.
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 he should not be reinstated: the employee was convinced 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," said the arbitrator. 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.
For more information see:
• C.U.P.E. v. The Scarborough Hospital (April 3, 2013), J. Hayes - Arb. (Ont. Arb. Bd.)
Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) 863-4678 or firstname.lastname@example.org. Adrian's discussion of this case also appears in the Dentons blog www.occupationalhealthandsafetylaw.com.