Lights out for worker who refused night shift move

Worker claimed he couldn’t work night shift for medical reasons, but information he provided didn’t support his argument
By Jeffrey R. Smith
|Canadian Employment Law Today|Last Updated: 03/20/2019

An Ontario arbitrator has upheld the dismissal of a worker who refused to accept a move to the night shift.

Talat Khan was a millwright for Nestle Canada at the company’s production facility in Toronto who was hired in 2012. He normally worked the afternoon shift, but on March 15, 2018, the maintenance manager informed him that he was being moved to the night shift effective March 25 so the company could balance out the millwrights on each shift. Khan had a vacation scheduled around that time, so his first scheduled night shift wouldn’t happen until April 10.

Khan wasn’t happy about the change because he felt it violated the collective agreement and thought he was entitled to a layoff instead of a shift change. According to the manager, Khan called the manager a profanity and ripped up the letter.

After his vacation, Khan reported to work on April 10 but on the afternoon shift. His team leader told him he was expected to return to work on the night shift, but Khan refused to do so. The maintenance manager acknowledged it could be difficult to switch to the night shift during the week, so he allowed Khan to work the afternoon shift for the rest of the week and start on the night shift the following Sunday, April 15.

However, on April 15 Khan didn’t show up for the night shift. Instead, he arrived at work for the afternoon shift on April 16. The manager and team leader told him to go home and come back for the night shift that evening, but Khan was once again a no-show with no call-in to report his absence. He again reported for work the following afternoon.

The maintenance manager brought the issue to upper management, who scheduled a meeting with Khan and a union steward on April 17. Khan’s continued refusal to work the night shift was discussed and he was told to go home and return for the night shift that evening. However, according to the maintenance manager, Khan was disrespectful in the meeting, used profanities, and called the managers stupid and not knowing what they were doing.

Stuck to afternoons

Though he had been told to go home, Khan remained at the facility throughout the afternoon shift. He didn’t report for work that night or the next night, arriving for the afternoon shift instead. Nestle decided to suspend Khan for “insubordinate and inappropriate conduct” including disrespectful conduct towards his managers and unauthorized absences from work. Since Khan had a previous one-day suspension on his record, this suspension was for three days, at the end of which he was expected to report to work for the night shift or face “more severe progressive discipline and this may include termination.” Khan responded by throwing the notice of suspension across the table and saying whoever wrote it must be stupid.

Khan didn’t report for work after his suspension ended. He was absent without calling in for the next three days and Nestle didn’t hear from him until he came to an April 25 meeting to discuss a grievance of the suspension. At the meeting, Khan stated he had a medical condition preventing him from working the night shift and he had provided medical information to the company nurse in June 2017.

Nestle checked out the information Khan had provided 10 months earlier and found it consisted of a note stating Khan “has been unable to do changing shift work for medical reasons” as it affected his sleep patterns, caused headaches, and disrupted other functions. The note said Khan would benefit from “being placed on a steady shift with minimal to no disruptions.” A subsequent form had been given to Khan for his doctor to complete but wasn’t returned.

Nestle provided another form to Khan for his doctor to fill out and told him he would remain on night shifts until the company received information stating he couldn’t do so.

Khan remained absent from work, but Nestle held off on disciplining him while it waited for the medical information. On May 9, Khan presented the completed form with similar recommendations as the previous note, but Nestle didn’t think it proved he couldn’t work the night shift — he just needed a steady shift, regardless of the timing, with no sudden changes.

Khan was angry with the decision and told management they weren’t doctors and should reach out to his doctor for more information. Nestle said it had enough information to determine he could work a steady night shift and if he disagreed, he should provide more information to back up hat claim.

Khan was told to report to work for the night shift on May 11, but he didn’t show up. On May 16, he was suspended for five days for continuing his insubordinate behaviour and unsupported absences. The suspension letter warned he would be terminated for any further incidents.

Khan didn’t report for his first scheduled shift after the suspension on May 23 and didn’t call in his absence. Nestle terminated his employment.

Negative impact on business

The arbitrator noted Khan didn’t raise any medical reasons at the initial suspension meeting as an explanation for his absences or at any time before the grievance meeting to discuss the suspension. With no explanation for the absences and his refusal to attend work as directed — which was insubordination — Khan presented “a direct challenge to the employer’s ability to operate its business.” Nestle had just cause to impose a three-day suspension, the arbitrator said.

The arbitrator found that Nestle was entitled to “reach the conclusion that moving (Khan) to the night shift did not conflict with his medical restrictions,” as the medical note it already had didn’t support Khan’s claim. Since Khan continued to insist he was incapable of working the night shift, the onus was on him to provide medical information supporting his case — which Nestle afforded him the opportunity to do by providing another form for his doctor to complete. Khan didn’t provide any more medical information, so Nestle could stick with its conclusion, said the arbitrator.

The arbitrator also found Nestle followed the principles of progressive discipline — a suspension followed by a more severe suspension followed by termination, with warnings accompanying each suspension. Khan didn’t change his conduct at each of these stages and ought to have known his job was in jeopardy.

“When (Khan) received the five-day suspension, he was cautioned that failure to report for the shift (at the end of his suspension) would result in his employment being terminated. He ignored that warning,” the arbitrator said.

The arbitrator found Khan knew what he was doing when he refused to report to work on the night shift and then stopped working completely. This had a negative impact on Nestle, which had to find replacements for him, and the other employees, who were required to work additional hours.

Khan’s insubordinate refusal to accept the shift change, his unsupported absences, and disrespectful conduct showed it was unlikely he would change his ways and gave Nestle just cause to terminate his employment, the arbitrator said in dismissing the grievance.

For more information see:

Unifor, Local 252 and Nestle Canada Inc. (Khan), Re, 2019 CarswellOnt 345 (Ont. Arb.).

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