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Refuse, snooze & lose

Ontario Arbitrator upheld dismissal of worker who refused to move to the night shift due to medical reasons

shift work

For workplaces that operate with multiple shifts, dealing with employee refusals to change shifts (especially to night shift) happens all too often. I’ve heard it all as to why the employee doesn’t want to change to work the night shift – “it will disrupt my family’s routine”, “I’ll miss my kids’ sporting events”, “I can’t leave my dog unattended while I sleep during the day”,  “I don’t feel safe coming to this area of the city at night”, etc, etc. Each time an employee refuses to work a particular shift and provides a rationale for such refusal, an employer is obliged to consider whether the refusal is related to a protected Human Rights Code ground (e.g. family status, disability etc.) and, if it is, whether accommodation can be granted or whether undue hardship exists.   

Determining when the duty to accommodate exists can be tough especially in instances where an employee claims that they cannot work the night shift due to medical reasons. In the case of Unifor Local 252 v Nestle Canada Inc., 2019, Nestle did a great job in taking all appropriate and necessary steps to determine whether they had an obligation to accommodate based on medical needs. They also appropriately dealt with their employee, Mr.  Talat Khan’s (“Khan”), continued refusal to work the night shift.

Here’s a brief chronology of what happened and the steps that Nestle took:

  • March 15, 2108 – Khan was informed that he was being moved from the afternoon shift to the night shift effective March 25, 2018. Due to vacation scheduling, Khan wouldn’t actually start on the night shift until April 10th.
  • April 10, 2018 – Khan reports to work but on the afternoon shift. His team leader told him that he was expected to return to work on the night shift. Khan refused.
  • The maintenance manager provided Khan with some reprieve and allowed Khan to work the afternoon shift for the rest of the week and start on the night shift on Sunday, April 15.
  • April 15, 2018 – Khan didn’t show up for work.
  • April 16, 2018 – Khan reports to work for an afternoon shift. The manager and team leader told him to go home and come back for the night shift that evening.
  • April 16, 2018 – Khan didn’t show up for his night shift.
  • April 17, 2018 – A meeting was scheduled between management, the union and Khan. Khan continued to refuse to report to work for the night shift and was disrespectful in the meeting, calling the managers stupid and telling them they did not know what they were doing.
  • Khan continued to not attend at work for the night shift.
  • Nestle suspends Khan for 3 days for  “insubordinate and inappropriate conduct” based upon the fact that he had a previous 1 day suspension on his disciplinary record. Khan responds by throwing the suspension notice across the table and saying whoever wrote it must be stupid.
  • Khan failed to report to work after the suspension was served and was absent for the next 3 days.
  • April 25, 2018 – A meeting was conducted to discuss the suspension grievance. At the meeting, Khan told the company he had a medical condition preventing him from working the night shift and that the company nurse had been provided medical documentation in 2017.
  • Nestle determined that the note stated that 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 that Khan would benefit from “being placed on a steady shift with minimal to no disruptions”.
  • Nestle asked Khan to obtain updated medical and in the meantime told him they would keep him on the afternoon shift until updated medical was received. Khan remained off work and Nestle didn’t discipline him but instead waited for the updated medical information. 
  • May 9, 2018 – Khan presented updated medical which essentially stated the same thing as the previous medical documentation.
  • Nestle felt that the note did not indicate that he could not work night shift rather Khan needed a steady shift, with no sudden changes – so it told him to report to work for the night shift on May 11, 2018.  Khan didn’t show up.
  • May 16, 2018 – Khan was suspended for 5 days for continuing his insubordinate behaviour and unsupported absences. The letter warned that he could be terminated if this behaviour continued.
  • May 23, 2018 – Khan did not show up for work at the end of the suspension and did not call in to report his absence.
  • Nestle terminated Khan’s employment.

The arbitrator’s decision

In finding that Khan’s 3-day suspension was justified, the Arbitrator noted that Mr. Khan did not raise any medical concerns at the initial suspension meeting as an explanation for his absences nor did he raise medical concerns at any time prior to the suspension grievance meeting. The Arbitrator felt that Mr. Khan was a “direct challenge to the employer’s ability to operate its business” and so Nestle was justified in imposing the first 3-day suspension.

The Arbitrator found that Nestle’s interpretation of the initial medical note was correct and it did not stop Mr. Khan from being able to work the night shift. The onus was on Mr. Khan to provide additional medical documentation to support his stance that he could not work the night shift.  He did not so Nestle was correct in remaining with its conclusion that Khan could work the night shift.

The Arbitrator found that Nestle properly followed the principles of progressive discipline when Khan continued to refuse to report to work on the night shift and Khan was properly warned that his continued behaviour would result in the termination of his employment. As a result, the Arbitrator found that Khan’s termination was justified.

PH takeaways for employers

  1. Read medical notes carefully: While the employee in this case was saying that his medical supported his view that he could not work the night shift, a close reading of the medical documentation indicated that he required steady shifts but there was nothing stating that the steady shift could not be a night shift. While it’s often hard to read and understand medical notes if you’re not a doctor, careful reading of them is necessary and if you have any questions about the content of the medical note, get clarification.
  2. Do not be afraid: When employees are not following directives issued by the company, while some initial leeway could be given, ultimately, with continued misbehaviour comes the need to impose discipline. Failure to levy discipline could be seen as condonation by the company.
  3. Be fair and patient: The discipline should be documented, and the degree of discipline imposed should be proportionate to the misbehaviour. Here, while I’m sure there would have been a desire to terminate Mr. Khan immediately when he continued to be insubordinate and rude, Nestle did not jump the gun. The suspension lengths proportionately increased with each violation by the employee with the final suspension including a clear warning about impending termination.
  4. Be mindful of any pertinent collective bargaining agreement provisions: While in this case there was no reference to specific collective bargaining agreement (“CBA”) provisions, many agreements include language that pre-determines the consequence of failure on the part of an employee to attend work without calling an absence in. Remember to check the provisions of your CBA and invoke them as necessary and appropriate in the circumstances.
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