Union fighting decision to fire bus drivers on long-term medical leave
Two employees have been off work for several years, but both say they wanted to get back in the drivers’ seat
Two HSR drivers say the city wrongfully fired them while they were on medical leave and struggling with organ transplant complications exacerbated by the COVID-19 pandemic.
Steven Burke and Chris Markow, both of whom have been on long-term disability for several years, say the city cited “frustration of contract” as grounds to fire them last summer — basically an argument that their medical conditions prevent them from resuming work for the transit agency.
“But I always planned to come back
and I was close … when the pandemic hit,” said Burke, who has spent five years off the job waiting for, then recovering from a liver transplant.
The immunosuppressed 61-yearold admitted he was leery about getting back in the bus driver’s seat at the height of COVID, but said he was willing to come back temporarily in a different role that required less face-to-face interaction with the public.
“My doctor has given me clearance to try, but they still said no.”
Both men have provided medical documents to say they can return to work, either now or later, said Eric Tuck, president of the local bus driver’s union that is fighting the terminations as a human rights grievance.
“It’s frustrating and insulting that they’re relying on this argument — especially during a global pandemic over which our members have zero control,” said Tuck, who argued COVID has slowed or stymied returnto-work plans for both drivers.
Spokesperson Jen Recine said the city cannot comment on specific employee terminations for reasons of privacy.
But in general, she said a frustration-of-contract termination usually happens after an employee has been on long-term disability “for a matter of years” and deemed incapable of working “any time in the foreseeable future” due to a medical condition.
The termination does not assign fault to either party, she said, and allows the workers to collect severance pay.
Firing an employee “too early” while citing frustration of contract can be a human rights violation — but there is no set amount of time that employers must wait, said Ed Canning, an employment lawyer at Ross and McBride.
What an arbitrator deems an appropriate time frame might also differ for a company with only 10 employees compared to a large corporation with thousands of workers, for example. “There is an obligation to hold a job for them … but that (obligation) is not endless,” Canning said.
The city actually fired 10 HSR workers last year citing frustration of contract, according to Tuck, but the union is only grieving two of those cases.
The union said Markow went on long-term disability in 2014 and had both kidneys removed in 2018. The 10-year driver is on dialysis and awaiting a transplant. The pandemic has lengthened that wait, said Tuck, but the driver “had every intention” of returning to work once he recovers.
Burke went on leave in 2015 and recalls being deathly ill before getting a liver transplant in 2017. But the transplant was followed by a series of complications, including infections that forced him back into surgery and left him unfit for work until last year.
“I was close to the end (of my life) when I got the transplant, so it has been a long road back,” he said from his Mountain home.
“This is not the way I wanted to go out.”
Burke said he had targeted 2020 to get back to his job of 31 years, but his doctors were reluctant to sign off on the plan during the ongoing oandemic.
The driver acknowledges he remains immunocompromised, but noted the HSR employs other transplant survivors.
“When COVID is over, I want to go back to driving,” he said.
Recine said the city always communicates with workers on longterm disability and their medical professionals before making the decision to end employment.
But Burke said he sought and received a doctor’s opinion last July — after learning of his termination — that pronounced him fit for a “graduated return” to work.
He provided a copy of the letter to The Spectator.
He pitched himself to the city as an acting HSR inspector, a job he has trained for, but said the HSR would not rescind his firing.
Tuck said the union is awaiting a date for arbitration of the grievances, but pandemic delays have slowed the process. Late Wednesday, the national president of the Amalgamated Transit Union also issued a statement condemning the city’s decision and urging it to reconsider.
Tuck said the drivers have not ruled out filing a separate complaint to the provincial Human Rights Commission.