Shafted

George Widomski gave Dofasco 25 years of faithful service. In return, the giant steel company gave George a "no-fault" termination in August, 1994. The company claims it had no other option.

The reason? George has physical disabilities caused by 25 years of mopping and buffing Dofasco�s floors.

George�s problems began in 1990 when a chair rolled out from under him as he tried to sit down during a break. He went crashing to the floor, injuring his back, neck, right arm and shoulder. As well, George was diagnosed with work-induced repetitive strain injuries to his arms, wrists and fingers.

One aspect of repetitive strain injury is carpal tunnel syndrome, where the median nerve is compressed inside the wrist. It causes pain, tingling, numbness and swelling in George�s wrists and fingers, and weakness in his hands. As a result, ordinary tasks like fastening a button or opening a jar become difficult or impossible. George had surgery on his right wrist in 1991. It failed to relieve his carpal tunnel syndrome. The condition is often irreversible.

This condition limits George�s ability to perform some kinds of work. At the same time, the largest steelmaker in Hamilton, Ontario, says it has no alternative work available. When George returned to work, Dofasco gave him a lighter mop with a longer handle and told him to use a new technique for cleaning floors. In part, it involved bracing the mop handle against his chest and walking backwards.

Mopping with one arm and walking backwards on a soapy floor was an incredibly awkward procedure, yet George says he was expected to accomplish the same results as a worker with no disability. In fact, George�s medical restrictions stipulated that he was to perform no repeated lifting, pushing or pulling; no repetitive upper extremity activity; no work above the shoulder or with outstretched arms; and no sustained flexion, extension or rotation of the neck.

The work was beyond George�s medical limitations. He was re-injured, and forced off work again.

Over the next few years, George repeatedly returned to work, only to be re-injured. In June, 1994, George returned to work for the final time under the company�s occupational rehabilitation program, allegedly designed to help people get back on the job after an injury.

It appears that when George entered the program, the company asked him to sign a contract involving his human rights. For instance, the contract stipulated that George�s employment might be terminated if he missed three consecutive or non-consecutive days of work while in the 90-day program.

Such contracts are a problem because the parties cannot waive, or contract out of, human rights legislation. Human rights are inalienable; you cannot sell them or give them away. Rather, the human rights legislation requires the employer to accommodate the work or the workplace to the needs of the injured worker, unless it would cause the employer undue hardship to do so.

By August 1994, George had missed a few days of work due to his disabilities. He was in violation of his return-to-work "contract" and Dofasco got rid of him. He was given a severance package of three weeks� salary per year of service.

In fact, at the time of his dismissal, George was in receipt of a seven-per-cent permanent disability pension by the Workers� Compensation Board, with other claims pending. This fact is significant in view of the protections afforded by law to persons with disabilities.

First, George is protected by Section 15 of the Charter of Rights and Freedoms. It guarantees every individual equal protection and equal benefit of the law without discrimination on the grounds of physical or mental disability.

Secondly, George is protected under the Ontario Human Rights Code, 1981. It prohibits discrimination with respect to services, accommodation, contracts, employment and membership in vocational associations "because of handicap." As well, people with disabilities are protected from harassment with respect to accommodation or employment.

Furthermore, Part II(v) of the code defines "handicap" as an injury or disability for which benefits were claimed or received under the Workers� Compensation Act.

This would seem to place George�s case squarely within the protection of the Ontario Human Rights Code. Since the code takes precedence over other legislation (except the Charter of Rights and Freedoms), it seems that George�s employer may be required to live up to the spirit and purpose of the code when accommodating workers with disabilities.

Specifically, the employer should be held to the standard of accommodation set out in the Ontario Human Rights Commission�s "Guidelines for Assessing Accommodation Requirements for Persons with Disabilities." The guidelines may be obtained from any local Ontario Human Rights office, at no charge.

Finally, George has rights under the Workers� Compensation Act. In certain circumstances, this act gives persons injured at work the right to be re-employed by their employers. Board policy on accommodation states that the employer may be required to "undertake any and all actions that will respond to the needs of the injured worker."

All of this would seem to suggest that the employer has many options, short of terminating employment. Rather, the employer�s emphasis should be on responding to the needs of the injured worker in the specific work environment involved.

David Lepofsky, Counsel with the Constitutional Law and Policy Division of the Ministry of the Attorney General for Ontario, says: "... The duty to accommodate is critical to the fight for equality for the disadvantaged... The core of any accommodation is the tailoring of the work rule, practice, condition or requirement to the specific needs of the affected individual or group..."

Overall, George�s case highlights the need for the injured worker and disability communities to work together. The Ontario Human Rights Code�s definition of "handicap" makes clear our mutual interest in preventing discrimination through accommodation.

Recently, George challenged Dofasco to live up to its advertising slogan: "Our Product is Steel. Our Strength is People." He took the extraordinary step of renting billboard space near the main gate of the site of his former employer. The billboard said, "Dofasco injured who have been fired! Send name and phone number to: SHAFT, Box 317, Binbrook, ON, L0R 1C0." (SHAFT stands for "So How Many Are Fired Tomorrow?")

In putting up this sign, George hoped to find other employees who had lost their jobs because injuries limited their ability to work. He wanted to tell their stories so people would know what happens to workers when they develop disabilities.

The result? Thirty people from the injured worker and disability communities soon rallied around George and his billboard to show their support. Among these were Mark Sertic and Verne Peter, executive members of the Hamilton and District Injured Workers� Group. Both men lost their jobs at Dofasco when the company failed to accommodate their work-related disabilities.

Similarly, the Ontario Network of Injured Workers, led by Karl Crevar, and United Disabled Consumers, represented by Sal Vella, rallied round and pledged their support.

"Our Times," a respected labour magazine, ran a piece about Mark and Verne�s experiences of disability at Dofasco in its April 1995 issue. Soon, mainstream radio, television and newspaper reporters discovered the issues George had raised along with his billboard. For example, the Hamilton "Spectator" featured George�s story with a picture of him sitting in the back of his pickup truck under his protest billboard.

George says the support was "overwhelming." Within 48 hours of George speaking to the media, Dofasco workers donated $400 in order to pay for the protest billboard.

Now George is well on the way to accomplishing his goal: forming a support group for Dofasco injured workers and letting people know what happens to workers when they develop a disability on the job. In fact, George may have hit a nerve. More than 300,000 workers are injured on the job each year in Ontario. Each one fears for her or his job.

Stan Gray, an advocate on behalf of injured workers, is helping a number of former Dofasco workers with a complaint to the Ontario Human Rights Commission alleging systemic discrimination in the workplace due to disability, especially with respect to "contracts" which waive human rights.

Finally, we must salute George�s courageous protest. His billboard has had the effect of bringing the injured worker and disability communities together. While the Hamilton and District Injured Workers� Group and United Disabled Consumers were already moving in this direction, George�s plight has highlighted the need for such alliances, and galvanized us into action.

(Bonita Clark is an injured worker and an LL.B., Osgoode Hall Law School. She works with the Hamilton and District Injured Workers� Group.)