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Union says two HSR employees ‘wrongfully terminated’ due to organ transplant complications

Lisa Polewski / 900 CHML

The head of the local transit union is calling for Hamilton city council to intervene after two Hamilton Street Railway (HSR) employees lost their jobs in the middle of the pandemic.

ATU Local 107 president Eric Tuck says the two transit workers were “wrongfully terminated” last year due to complications related to their organ transplant surgeries and COVID-19.

“For my members that are out here every day, putting their life at risk, working during a pandemic, we just think it’s deplorable,” said Tuck.

“I could get sick tomorrow, through no fault of my own, and they just discard you like a used tissue. It’s just not right.”

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One of the employees who was let go, Steven Burke, had been with the transit agency for 31 years.

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Tuck said Burke went on medical leave in 2015 after he was diagnosed with NASH, an aggressive form of non-alcoholic fatty liver disease.

He successfully underwent an organ transplant in 2017 and had a “complicated” recovery, and while preparing to return to work in 2020, his specialists raised concerns over his compromised immune system and the risks posed by COVID-19.

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Despite the risks, Tuck said Burke was told by his specialists that he could still work as long as he had minimal contact with the public, but the city nevertheless let him go in July.

“It truly felt like they were kicking me in the teeth when I was just on the verge of climbing out of a dark hole and claiming victory over this illness,” said Burke in a media release from the union.

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“After all I had overcome, to have my career come to a grinding halt over a global pandemic that I have no control over is extremely frustrating.”

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The other employee to be dismissed, Chris Markow, had been with the city for more than a decade. He went on long term disability in 2014 to be treated for his polycystic kidney and liver disease.

Markow has been on dialysis since both of his kidneys were removed in 2018, according to Tuck, and while transplants have been delayed by the pandemic, he was apparently on the list to undergo surgery sometime in 2020 until he received notice of his termination.

In the union’s release, Markow said he went from “the highest high to the lowest low.”

“Words couldn’t describe the gut-wrenching blow to my life this (termination) letter caused. They pulled the rug out from under me, at a time when hope had returned, and I could see light at the end of the tunnel.”

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Both Burke and Markow claim they were terminated due to “frustration of contract,” which can often occur when someone is unable to work for an extended period of time.

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While a spokesperson for the city of Hamilton did not confirm the specific circumstances and identities of the employees involved, citing confidentiality, she did confirm that frustration of contract would typically occur when someone has been on long-term disability (LTD) for a matter of years.

“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,” said spokesperson Jen Recine in an email.

“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.”

The union appealed to have both terminations reversed but were unsuccessful, and the process will instead go to arbitration.

Tuck said that will take months and months due to legal backlogs caused by COVID-19, saying he’s been told that the earliest opportunity for a hearing is September 2021.

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Instead of waiting until then, he’s urging city council to “review” the decisions, saying this is a case that “screams out for intervention.”

“It’s somewhat ironic, you know, we just had transit day at city council and the director and everybody, all the politicians, were praising us as heroes who are working through this pandemic,” said Tuck. “But behind the scenes, you’ve got your human resource department that’s basically treating you like zeroes.”

“We’ve had enough, quite frankly. The morale is going downhill very quickly.”