Dismissal of Alberta police officer due to job concerns, not disability: Court (Legal View)

Finding of discrimination overturned; inability to do job a primary factor for police
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 03/27/2013

The dismissal of an Alberta police constable following back injuries and depression wasn’t discriminatory and was based on his inability to do police work, the Alberta Court of Appeal has ruled.

The constable was hired by the Lethbridge, Alta., police service in April 2005 and he began an 18-month probationary period, as was standard for all new police officers under the province’s Police Service Regulation. But six months later, in October 2005, he suffered a hernia and had to undergo surgery.

The police service proposed modified desk duties while he healed, but the constable refused because he didn’t want to sit behind a desk at work. Instead, he worked on his rehabilitation at home.

The constable returned to work in January 2006. Two months later, he hurt his back lifting an intoxicated individual into a police car and he eventually filed a workers’ compensation claim.

An MRI showed there wasn’t anything seriously wrong with the constable’s back, but he continued to experience pain and had to go on modified duties. In July, the City of Lethbridge Employee Resource Centre developed a return-to-work plan for him with modified duties, with a target date of August for full duties — as long as the constable’s doctor cleared him for work.

The constable was also told to report to a different shift when he returned. However, the constable returned to his original squad without any updated information from his doctor. He said he was anxious to get back to work but later acknowledged he had “jumped the gun.” He was cited for insubordination.

Physical disabilities, mental health issues

The constable continued to work modified duties but, eventually, it became too difficult for him. His doctor noticed he was starting to show signs of depression, which concerned the police service. The constable was required to hand over his service weapon and undergo a psychological assessment, which revealed he was having difficulty dealing with work and personal stressors.

The psychologist determined the constable wasn’t fit for operational duty with a firearm.

In November 2006, the constable had a performance review that took note of his initial refusal of his return-to-work instructions, his many absences, his insubordination and the removal of his service weapon. There was also concern he had indicated he had a “mistrust of management” after speaking with certain union representatives.

Another psychological assessment in February 2007 found the constable was fit to serve as a police officer, but the police service concluded he wasn’t able to perform his duties as a constable. On April 26, 2007 — shortly before his probationary period ended — his employment was terminated.

The police association filed a grievance and the constable filed a human rights complaint, claiming his termination was at least in part because of a disability. A labour arbitrator found the constable’s hernia and back pain were “genuine, if difficult to diagnose, disabilities” and the police service was skeptical about the seriousness of the injuries, due to this difficulty.

The police service also took his refusal to work desk duties as a lack of commitment and poor attitude, said the arbitrator, which was “just the type of stereotypical assumptions those with illnesses face; they are prone to using their illness as an excuse to avoid work.”

Many of the reasons for the constable’s termination stemmed from his health issues, found the arbitrator, who ruled he was discriminated against and unfairly terminated just before the end of his probationary period.

The police service appealed the decision and a chambers judge overturned the arbitrator’s decision. The judge found the constable was terminated due to the fact the police service felt he couldn’t meet the requirements of the job and the decision to terminate wasn’t arbitrary, discriminatory or in bad faith — the only reasons such a decision to dismiss a probationary employee should be overturned, said the judge.

“It was a job that required obedience to a chain of command,” said the chambers judge. “(It is) very rigorous, physical and demanding work which required optimum health and a clear mind that was unencumbered by any mental or psychological problems in order to make quick decisions under pressure and to potentially use a firearm in a safe manner.”

Ability to do job critical for police recruits: Court of Appeal

The police association appealed this decision to the Alberta Court of Appeal, which noted probationary employees have “fewer entrenched rights” under collective agreements. As a result, it agreed the termination of a probationary employee should only be overturned by bad faith or discriminatory considerations.

The appeal court noted probationary periods “are doubly important for police recruits” because, in the interests of the safety of the public as well as the recruits themselves, the police service had to be sure the new recruits were capable of doing demanding police work.

The arbitrator was influenced by “administrative missteps and poor communication” and felt none of the problems were the constable’s fault, said the court. This led to the arbitrator failing to review the termination on its merits and instead chalking it up to “stereotypical thinking,” said the appeal court.

Several factors contributed to the constable’s termination, said the court: injuries that led to his absences or modified duties on almost half of his shifts; difficulties in a definite diagnosis and prognosis; the constable’s bad decisions; medical opinions that he was psychologically unfit; and miscommunication within the police service. None of these were rooted in discriminatory or stereotypical thinking, said the appeal court.

The police service also didn’t try to minimize the constable’s injuries, it said. In fact, the modified duties and insistence he not return to full duties until given medical clearance showed the opposite. It was the constable who tried to return to work early, said the appeal court.

“The arbitrator found that the situation ‘had its roots in his health issues.’ That is true; without his health issues, none of this would have occurred. But it does not follow that because he had health issues, everything that happened to him is ‘discriminatory,’” said the appeal court.

The appeal court agreed with the chambers judge’s decision to overturn the arbitrator’s finding of discrimination and dismissed the police association’s appeal.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com.

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