Stressed firefighter combats firing (Legal View)

Claimed bad attendance record was caused by mental disability but really he just handled personal problems poorly, says Ontario arbitrator
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 01/28/2013

An Ontario firefighter’s dismissal for missing work without permission has been upheld by an arbitrator, despite the firefighter’s claim he suffered from a disability.

Kim Elliott was a firefighter with the Fire and Rescue Service in Windsor, Ont. Hired in 1991, he was disciplined several times, mostly for attendance problems and tardiness. Along with verbal and written reprimands, Elliott was suspended four times for varying lengths of time.

On March 29, 2004, he was given a warning letter following a suspension for an unauthorized absence that stated if he missed any more work without permission, he would likely be dismissed.

Worst attendance record

Elliott’s record for unauthorized absences was the worst in the Windsor fire department. This was a concern because a specific number of firefighters was required to operate each fire truck and if anyone was missing, a truck was taken out of service. Shifts were typically 24 hours long, twice per week, so one absence could make a truck unavailable for 24 hours.

Following a 2003 absence, Elliott was asked if he had any medical problems that could prevent him from coming to work on a steady basis. Elliott mentioned problems with his marriage as well as legal and financial difficulties. The deputy chief suggested a followup meeting with the union, but it didn’t happen.

In late 2001 and early 2002, Elliott was off work on an approved medical leave for “severe and incapacitating stress.” His claim for long-term disability benefits included a diagnosis of an adjustment disorder caused by financial and marital problems, job pressures and community difficulties.

When Elliott was given medical clearance to return to work, the fire department made it clear his discipline record would continue where it left off. The psychologist stated this would not be a problem and Elliott didn’t indicate he had any disability that needed to be accommodated.

In late June and early July 2004, Elliott missed five shifts without notice. He was called into a meeting where he said there were “barriers” that sometimes kept him from going to work, but he would try to improve his attendance. He also said he was under a doctor’s care and would provide a note. The department asked him to provide medical evidence to explain his absences.

Elliott brought in a letter from his psychologist that stated he had not been treated during his absences and couldn’t comment on his stress level. The doctor said he had treated Elliott in the past for “chronic stressors that periodically create significant difficulties for him.” The department also learned later that Elliott had been in jail during the last three shifts he missed due to a breach of his bail terms following an arrest for an altercation with his ex-wife.

On July 30, 2004 — one week after the meeting to discuss the absences — Elliott was late for work without an acceptable reason. On Aug. 13, his employment was terminated.

Elliott contested the termination, arguing his chronic mental problems constituted a mental disability and when he was provoked emotionally, he was unable to think rationally. He said the department was aware of his problems — he had told the deputy chief about his personal problems and his related depression and anxiety, as well as the problems leading to his medical leave. His dismissal was the result of his attendance problems, which were caused by his mental disability, said Elliott.

The fire department argued there was no evidence supporting a disability and there were no indications his attendance would improve in the future, so the only possible accommodation would be to simply allow Elliott to be absent without permission, which wasn’t possible in that workplace. In addition, Elliott’s psychologist didn’t formally diagnose a disability.

Vagueness about disorder

When Elliott was at work, he was considered to be doing a good job, noted the arbitrator. Though he may have mentioned some of his problems and had to take a medical leave, at no point did Elliott indicate he couldn’t perform his full duties and required accommodation when he was at work.

Also, Elliott didn’t indicate a mental disorder caused his absences, other than for his medical leave in 2001, said the arbitrator, which suggested that if his disorder was a disability, it didn’t interfere with his work and wasn’t easy to recognize.

When Elliott went on his 2001 medical leave, the fire department was told he was being treated for stress and emotional problems, said the arbitrator. Elliott was cleared to return to normal work and there was no indication there would be ongoing problems. This did not qualify as notice of a disability, said the arbitrator. Also, though the psychologist indicated on the long-term disability claim Elliott had a mental disorder, he didn’t tell the employer.

The problems Elliott discussed with the deputy chief regarding his family and financial problems were not diagnosed as disability-related and could not be considered notice of a disability, said the arbitrator. The same could be said for Elliott’s comments about barriers in his disciplinary meeting in July 2004, when he didn’t provide specific information about his problems.

All people have to deal with issues in their personal lives and organize their time and priorities, said the arbitrator, and being bad at this cannot be considered a mental disorder. Though Elliott’s way of handling his problems was unfortunate or even dysfunctional, this didn’t demonstrate he had a mental disorder that disabled him, said the arbitrator.

“I accept that (Elliott) had an ‘inability to follow through’ in dealing with his problems and had trouble focusing ‘on the underlying reasons and motivations that led him into difficulty,’” said the arbitrator. “But I do not think that the term ‘mental disorder’ in the (Human Rights) Code was intended to mean problems in dealing with stressful situations nor to mean an inability or unwillingness to address those unfortunate responses.”

The fire department was not made aware of a disability, said the arbitrator. It was reasonable to request medical information supporting Elliott’s absences and without it, the department had a right to discipline the firefighter. Given Elliott’s past disciplinary record for absences and his previous warning, dismissal was ruled an appropriate level of discipline for Elliott’s five-shift absence without approval.

For more information see:

Windsor (City) and WPFFA (Elliott), Re, 2012 CarswellOnt 14245 (Ont. Arb. Bd.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information visit www.employmentlawtoday.com.

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