Canadian Safety Reporter

5 Canadian HR Reporter, a Thomson Reuters business 2015 5 Canadian HR Reporter, a Thomson Reuters business 2016 News | June 2016 | CSR Lack of enthusiasm for assignment not reason for work refusal Worker's restrictions on file didn't indicate he couldn't perform assignment and he had done similar duties before BY JEFFREY R. SMITH AN ONTARIO worker's work refusal had little to do with con- cern over safety risks from medi- cal restrictions and more to do with him not liking his assign- ment, an arbitrator has ruled. Frank Czajkowski, 53, was an employee of the City of Hamil- ton, hired in 1990 to be an opera- tor in the roads and maintenance section of the city's public works department. His job involved various tasks such as grass-cut- ting, litter-picking, repairing pot- holes, hauling garbage, and other various maintenance jobs. Cza- jkowski and his co-workers were assigned specific duties from this list at the beginning of each day. Czajkowski had a series of in- juries and illness that affected his ability to work since 1993, par- ticularly back problems. In 2006, he had a heart attack. As a result of these problems, Czajkowski worked with permanent restric- tions such as limited bouncing and vibration on his lower back, no sitting for longer than one hour, limited twisting, bending or squatting, no repetitive lifting greater than 25 pounds, and only occasional lifting of 50 pounds. As part of its accommodation efforts, the city purchased a back support for Czajkowski that he could use when driving trucks. The city's dump trucks had air- ride seats — seats that use com- pressed air to reduce shock and vibration so they weren't a prob- lem, but other trucks had bench seats. In 2010, Czajkowski returned to work after being off for a time due to back issues. A return-to- work specialist had concerns about Czajkowski performing litter-picking due to the frequent bending and twisting required. The city responded by providing him with long-handled tools so he could pick up litter and stay within his restrictions. Over the next two years, Czajkowski sometimes worked at litter-pick- ing duties with the tools. In late March 2012, Czajkows- ki drove a truck with a bench seat on pothole and alleyway crews. At the beginning of the following week, April 2, he was assigned to haul garbage in a dump truck. He requested a newer vehicle than the one he was assigned because his back and leg were bothering him, so a different truck with a better seat was assigned to him. The next day, April 3, Cza- jkowski was assigned to a two- member crew picking litter in alleyways. This was the first time since his return to work that he had been assigned to exclusively pick litter, as before he had been given general alleyway assign- ments of which picking litter was only part of the duties. Cza- jkowski came into his supervi- sor's office with a union steward to say he was refusing to perform the work under the Occupa- tional Health and Safety Act, be- cause his restrictions required a truck with an air-ride seat and no manual labour. The supervisor checked Czajkowski's file and found no reference to air-ride seat restrictions, and Czajkows- ki said the Workplace Safety and Insurance Board (WSIB) would have the restrictions on record. Czajkowski confirmed he was still refusing his assignment for the day and was sent home with- out pay, as everyone else was on the road and there were no other duties available. He was later suspended for one day and Cza- jkowski grieved the suspension, arguing he was sent home due to the city not accommodating him as previously agreed to. It was his understanding that since 2010, litter-picking was outside his re- strictions and he was supposed to avoid vehicles without air-ride seats because of a 2007 memo from an orthopaedic surgeon — though he had driven vehicles without air-ride seats frequently since his return to work. Worker a no-show after being sent home The supervisor expected Cza- jkowski back at work the next day, with any additional informa- tion from the WSIB if possible, but Czajkowski didn't show or provide additional information on his restrictions. Czajkowski called the WSIB and told them he was sent home and suspend- ed for refusing to work. Because he was upset, he told them he always drove a truck with an air- ride seat. This wasn't true, but he was appealing the matter with the WSIB because of the 2007 memo that said he should avoid vehicles without air seats due to his worsening chronic back pain. Czajkowski also claimed he had been suffering from pain for a few days before his work refus- al, though he didn't see a doctor and didn't see his chiropractor until two weeks later. Czajkowski didn't return to the workplace until May 10, when the WSIB convened a meeting to try to settle his work restrictions. Before then, Cza- jkowski had no contact with his supervisor and the supervisor didn't try to inquire as to why he wasn't at work. Czajkowski was considered absent without leave during this time and wasn't paid. At the meeting, it was con- firmed Czajkowski's restrictions allowed him to do occasional litter-picking and he would be Credit: Vadim Ratnikov (Shutterstock) Worker > pg. 8

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