‘With a slightly different set of circumstances, it may very well have gone another way’: lawyer

An Ontario arbitrator has reinstated a worker who was fired for skipping an employer-mandated independent medical exam, substituting a lengthy suspension for insubordination.

The worker was hired in 2012 by Innocon Inc., a provider of concrete for construction projects in Toronto, to be a truck driver for the company. He had a three-day suspension on his disciplinary record.

The worker sustained a back injury at work on April 27, 2021, while lifting heavy materials. He was able to continue working with a mix of modified and regular duties. Innocon provided a formal offer of modified work on July 5, which the worker signed and began the next day.

However, the worker had to stop working completely on July 14. He provided Innocon with medical documentation from his family doctor, including a certificate stating that he was unable to work for an indefinite period. His doctor also completed a Workplace Safety and Insurance Board (WSIB) functional abilities form on July 20, indicating that the worker was “physically unable to return to work” until at least his next appointment in two weeks.

The worker’s doctor also filled out a WSIB form for return-to-work information, stating that the worker wasn’t able to work because of pain in his right leg, reiterating that a follow-up appointment was in two weeks.

Medical information

It seemed to take a few weeks for Inncon to push for medical...

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