Update: Following public outcry from Hamiltonians, the two operators have been reinstated to their positions.
After five years, HSR operator Steve Burke was thrilled to finally be medically cleared to return to driving a bus again.
“I love the job”, Burke states.
Burke had to go off work five years ago when doctors told him he needed a liver transplant. After an excruciating two year wait, he was one of the lucky ones.
In April 2017, he received a liver. He “had a complicated postop course” states the office of his surgeon Dr. Mamatha Bhat in a letter provided by Burke to both the City of Hamilton and The Public Record.
The medical letter, dated July 31, 2020, states “Dr. Bhat recommends that Mr. Burke is able to return to work if he feels able.” The Doctor recommends “a graduated return to work, starting with part time hours and gradually increasing the amount of time worked as tolerated.”
The note continues “Mr. Burke will have to gauge for himself what is safe, in terms of his capabilities as well as the ongoing COVID-19 pandemic.”
As liver transplant recipient, Burke’s immune system is partially compromised. HSR bus operators’ compartment is shielded with a plastic barrier, however, this does not provide full protection as air is shared with the rest of the bus. For these reasons, Burke feels the risks are too high to be on a bus every day during a shift.
After 31 years working for the HSR, he was terminated. The City says his contract is frustrated, that because he cannot return to work, his disability is permanent.
The City of Hamilton has determined that, even after COVID, he will not be able to return to work.
Eric Tuck, president of the Amalgamated Transit Union Local 107 which represents bus operators, says the City ended the employment of 11 HSR operators who were on long-term disability last year. The union is grieving only two of the terminations: Burke’s and Christopher Markow.
“First of all, the way these terminations took place the employees are terminated under ‘frustration of contract’”, Tuck states, in his usual direct and honest manner.
“It’s perfectly legal to terminate an employee for frustration of contract if you believe there’s no chance of them coming back or getting better”, Tuck explains. “These are two circumstances where there’s very clear evidence, I believe, that these two employees will be able to return to work.”
Tuck says a recent change in Labour Relations Officer at the HSR has changed the approach of the Company towards employees for the worse.
Tuck says the employees were not treated with dignity. They received their termination letters in general mail to their homes, no phone call and no meeting.
“Prior to this, we always had a sit down with a member if they were well enough to come in and have that discussion, we would find out about their medical condition and whether there’s any chance of them getting better.”
The HSR and City of Hamilton did not offer any work accommodation. Something Tuck and the bus operators all note as unusual, especially as the City of Hamilton says it lacks the ability to effectively engage in contact tracing during the COVID pandemic.
The lack of fulsome contact tracing is one of the many reasons Hamilton City Hall has been unable to manage the spread during the Fall second wave of COVID.
Tuck says the union tried to find Burke accommodated work, be it work from home, or as a road supervisor. Burke started with the HSR in early 1989 and is qualified as an Acting Inspector, which is a role he previously filled. As an inspector, Burke’s contact with the public would be minimal.
Burke says he wants to return to work, especially after the length of his recovery. He says it was difficult in the rehabilitation hospital. He says he had to prove he could walk before they would discharge him after his transplant.
“I finally got home after six months in the hospital for a stay that shouldn’t have been half that long.”
“Since I got home, it’s been a very much slower recovery than I expected”, Burke continues. “I went through hoops to try and get doctors to say that I was able to go back to work.”
He finally received the permission, but it was too late. The City had terminated him.
Tuck says they brought the return-to-work letter to the grievance meeting, but to no avail. The City is holding firm, leaving the union to fight and take the matter to arbitration.
Burke and Tuck are both waiting for doctors to determine when Burke can receive the COVID vaccine.
“I have to take a lot of medication” says Burke of the anti-rejection medications for his transplanted liver. “If I get a cold, I could end up in hospital. I have to be very, very cautious.”
Christopher Markow is waiting for what he hopes will be his transplant day in the future. Originally from Hamilton, Markow lived in Australia for around 15 years before returning to Hamilton in 2008 and quickly applied to be a bus operator. In fact, he applied twice before getting hired in 2010.
“It’s just something I’ve always wanted to do”, he says.
“I knew a few people who drove bus and they always told me what a good job it was. I enjoyed being with the public and dealing with people and that’s basically how I started, I just came back to my roots.”
In 2014, he received the diagnosis he had feared most of his life. He inherited Polycystic Kidney Disease and as well as polycystic liver.
“There was a 50/50 chance that my father would pass it on to me”, says Markow. “Unfortunately, I got the wrong side of the coin.”
Markow is matter of fact about the disease, explaining that he always knew he was at risk stating he is hopeful of a transplant and full recovery.
“I mean this, it’s no one’s fault, but this disease. Over the years has taken everything that I’ve had.”
“I’m grateful”, he says of the HSR hiring him. “They knew prior to me getting hired. They knew I had the disease. I didn’t lie.”
Tuck says the decision of the HSR to terminate Markow particularly bothers him.
“Top specialists say once he has this transplant”, Tuck states. “There is no reason he cannot lead a normal life or return to work.”
It is not just how the City terminated them which frustrates Tuck.
“There is an opportunity [for him to return to work]”, Tuck continues. “The City’s going to pay for Chris to be on long term disability permanently.”
Markow wants to return to work. That hope is what sustains him as he awaits the hope of a transplant, Tuck says. “Why wouldn’t you allow him that dignity”.
“He worked for you for almost five years”, Tuck says. “He is a good worker, a good employee. And then he has the misfortune of getting sick and needing a transplant”.
“He’s waiting for a transplant”, Tuck says. “Once that transplant is done, there’s no reason he cannot come back to work and still have a successful career and work up until 65.”
Markow says he hopes to work longer if his health will allow. “Who’s to say I have to quit when I’m 65 I could work till I’m 70 or 75, as long as I’m healthy.”
“I mean, Chris, could sit there and just collect the long-term disability for the rest of his life to 65, if that’s what he wanted to do. He’s not choosing to do that”, says Tuck. “He’s fighting to keep the job. So he has something to come back to and some hope down the road.”
Tuck asks why the City of Hamilton is not engaging as many employees as possible in contact tracing during the pandemic.
“What are they doing? I don’t get it,” Tuck says. “Certainly, contract tracing is one of the most important jobs at this time.”
The union will fight no matter how long it takes, or the costs involved. says Tuck.
“To just toss people away is just wrong”, says Tuck. “It’s wrong in every, every sense, whether it’s legal or not it, morally and ethically it’s wrong. For the union, that’s worth fighting.”
City of Hamilton Statement:
“While we can’t speak to any individual/specific details of any employee cases as those are confidential personnel matters and involve personal and private health information, we can share that in the case of employees on Long Term Disability (LTD), those terminations typically occur after a long period of time because there has been what is called a ‘Frustration of Contract’.
Frustration of Contract is the legal doctrine/policy where the employment relationship is brought to an end by no fault of either party. While we can’t speak to the individual circumstances of the employees mentioned, I can confirm that Frustration of Contract would typically occur after someone had been on LTD for a matter of years.
By ending the employment contract, it provides for an employee’s right to severance under the Employment Standards Act when the contract of employment is impossible to fulfil as a result of medical condition from which an employee is deemed to be totally disabled and unable to work any time in the foreseeable future.
By the very nature of someone being on LTD, that precludes them from doing any kind of work (nor can they participate in any work accommodations) while on LTD as they are deemed, through the LTD process, not able to work at all from a health perspective. We as the employer always consider each case individually and communicate with employees’ respective medical professional(s) prior to making any decisions.
Fourteen long-term disability (LTD) employees were terminated in 2020. All of these employees remain on full disability benefit payments and health and dental coverage. This is the same benefit coverage they had prior to the date of their termination.
We appreciate that these matters are extremely delicate and sensitive, and we handle each case individually within the legal parameters in which we are required to operate, while ensuring the utmost compassion and consideration for each employee’s personal and often very difficult circumstances.”
Production Details v. 1.1.0 First published: January 27, 2020 Last updated: January 27, 2020 Author: Joey Coleman Edit Record v. 1.0.0 original version v. 1.1.0 added City of Hamilton statement