B.C. forestry worker fired for working during sick leave

Stress caused by company environment, not type of work
|Canadian Labour Reporter|Last Updated: 03/25/2019

A union-management disagreement over seniority lists and harassment lead a forestry worker to take sick leave due to high stress levels at work.

Rick Neuwirth worked as a grapple yarder operator at Big Lake Logging in British Columbia and was recalled to work in October 2017, after an 18-month shutdown. Big Lake and Island Forest Company (IFC) worked under license to Western Forest Products, which owned logging rights in the Franklin River area.

The two companies were part of five that operated the site and all shared a common collective agreement. 

During a Nov. 22 meeting, the United Steelworkers (USW), Local 1-1937 and management met to discuss a single seniority list between the five contractors. 

Shawn Nicholson, owner of Big Lake and IFC, opposed the single list and the meeting was described as “disorganized” with “lots of tension.” Neuwirth attended the meeting and left with the impression that Nicholson “would pull out if we didn’t agree to split the seniority list.”

A union meeting was held on Dec. 2 and Neuwirth, who had held various union positions in the past, attended. Before the meeting, he received a phone call from foreman Dan Hyde, who asked, “Whose fucking side are you on?”

Hyde later left “intoxicated messages for me on my phone throughout the evening of Dec. 2,” said Neuwirth, who later filed a WorkSafe BC mental-health claim due to the harassment. 

On Dec. 3, Neuwirth was advised by Hyde that work was to resume on Dec. 4, after a series of work stoppages due to weather. But Neuwirth told the foreman that he would take a stress day off and see his doctor. 

Neuwirth later said he would be able to attend work on Dec. 5, but the employer said he would need a doctor’s clearance before he could return.

After a Dec. 6 doctor’s appointment, during which he broke down in tears at the office, the doctor wrote a note: “Richard is currently unable to work under the circumstances at work until it has been resolved.” 

On that same day, Neuwirth met the owner of the Weasel Creek logging operation, who offered him a position as grapple yarder operator. He accepted and worked with them until June 2018.

Neuwirth remained off work with Big Lake during that time. 

On Dec. 20, he spoke with Melissa Flint, an employee of Global Total Care (the company used by both employers for illness management services) to update his situation.

On Jan. 15, Neuwirth texted Colin Shantz, who co-owned Big Lake and IFC, about a possible return to work. Shantz said he would have to get a doctor’s clearance first. Shantz testified he knew at that time that Neuwirth was working with another company.

However, Big Lake and IFC terminated Neuwirth on Feb. 7, despite a Feb. 8 doctor’s meeting. He grieved the dismissal. 

The employer argued that because Neuwirth worked the same job at another company, his symptoms were not real. 

But the union countered and said his stress was due to union-management tensions, as well as the treatment from Hyde.

Arbitrator Richard Coleman agreed and upheld the grievance. 

“I find that the worker did not abandon his position and was on an approved and medically bona fide leave throughout the relevant period, and that the dismissal was without cause. I find that the evidence does not support a finding that he went to work for the alternate employer on a clandestine basis, intending it to be a secret. Nor does it support the allegation that his symptoms were faked and he lied or mislead the employer and his treating physician. The objective facts show that he was open about the alternate employment and that the work restriction was for Big Lake where he experienced the stressors which brought on the symptoms, but not elsewhere and that when he felt sufficiently recovered, he attempted to return to work at Big Lake.”

“By way of remedy, (Neuwirth) is to be reinstated retroactively,” said Coleman.

Reference:

Big Lake Logging and United Steelworkers, Local 1-1937. Richard Coleman — arbitrator. Greg Heywood for the employer. Steven Rogers for the employee. Feb. 25, 2019.

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