Guelph Man Takes Sleeman to Human Rights Tribunal

November 02, 2009
Joanne Shuttleworth
jshuttleworth@guelphmercury.com

GUELPH - A Guelph man has taken Sleeman Breweries and Malting Co. Ltd. and its employee benefits supplier Great-West Life Assurance Company to the Human Rights Tribunal of Ontario, claiming he was fired because he has a disability.

Sleeman counters that it welcomes the opportunity to tell its side of the story but can't speak publicly until after the hearing date in December.

"We are a responsible employer. We want to do the right thing," said Walt Bordian, vice president of human resources for Sleeman. "I think the tribunal will find we are without fault."

Lance Tyszka started working for Sleeman as a packaging operator 19 years ago and moved up to packaging lead hand over his time with the brewery.

Tyszka, 38, has had four kidney transplants in his life - life-saving surgeries that require him to take anti-rejection drugs.

He functioned fine at work, he said, until April 2008, when his creatine levels started to skyrocket. This is an indication something could be wrong with his kidney, he said.

Tyszka said he got into verbal arguments with two of his colleagues during this time and the company disciplined him for it. He was bumped back to a lesser job in the packaging department.

"I was under stress and I (twice) got into an argument with a co-worker," Tyszka said. "They called me in and wrote me up.

"The company knew I had a disability and instead of helping me, they disciplined me twice. I thought, 'I don't need this if it makes my health go kaput.' "

Tyszka was also awaiting knee surgery at this time. He said he was told he would not be able to have it if his kidney health was unstable. He said he went on medical leave in April 2008 and didn't expect to be back to work until he was over his surgery.

Before he left work though, Tyszka said he was told by Sleeman it didn't believe he had any health restrictions and that he had "no rights" when it came to his time off work, or his return to work plan.

He filed an application for a hearing with the Human Rights Tribunal in July 2008.

He had his knee surgery in August and his recovery took about six months, he said.

But Great-West Life Assurance Company - the company that supplies benefits to Sleeman employees - indicated it wanted him back to work sooner, he said.

Great-West officials repeatedly asserted they would provide comment for this story, but they failed to do so since first contacted for the article more than a month ago. The company has, however, denied any wrongdoing in the case in a statement of defence filed in a related civil action Tyszka has initiated.

In November 2008, Tyszka said he had a mediation session with Sleeman and the Human Rights Tribunal, where a functional ability form that detailed how Tyszka would return to work was hammered out.

Philip Matthews, a friend of Tyszka, also attended the mediation session to support Tyszka. He said the contents of the functional ability form are confidential, but essentially it asserted Tyszka would need a job where he could be seated and could ease back into full-time hours.

Tyszka said he was ready to return to work with a modified schedule early in January but the company refused to allow that.

"I needed the job to be altered and they wouldn't do it," Tyszka said.

He said he was cut off from long-term disability benefits on July 3 and took a temporary position at Turtle Creek Golf Club, in Campbellville, in August. His job is to wash the golf carts and help out in the pro shop.

"There's no lifting and not much standing," Tyszka said.

He said he informed the Human Rights Tribunal of his part-time employment but not Sleeman.

In the meantime, he initiated a small claims court action against Great-West Life and Sleeman. It's to be heard in Guelph on Nov. 25.

In a statement of defence filed in that action, Sleeman denies "ignoring the concept of an early and safe return to work." In the document, Great-West asserts Tyszka failed to co-operate with terms of his coverage related to such things as following a recommended rehabilitation program and was subsequently cut off from benefits.

None of the statements in the filing have been proven in court.

Great-West asserts in the court documents that Tyszka has yet to appeal its decision to drop his benefits via the internal processes outlined in his benefit agreement.

On Sept. 14, Tyszka's Sleeman employment was terminated. The termination letter he received cites failure to provide medical documentation, failure to notify Sleeman of his temporary job at Turtle Creek, and job abandonment as the reasons.

"Sleeman does not have up-to-date medical evidence to support either your continuing absence from work or to support your return to work. There is no indication that you are in the process of obtaining such documentation. Given the lack of such evidence, you have been absent without authorization or proper justification for the past eight weeks. As such, Sleeman has cause to terminate your employment," the letter reads.

"They're talking out of both sides of their mouth," Matthews said. "The Human Rights Tribunal is a powerful body. They'll set this right."

In the small claims action, Sleeman and Great-West have also asked the court to consider whether the matter is within its jurisdiction given Tyszka's Human Rights Tribunal action and other appeal avenues available to him with Great-West and via Sleeman's contract with its unionized employees.

Reproduced from http://news.guelphmercury.com/News/Local/article/556241

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