Harassment complaints, poor interpersonal relationships made return-to-work program challenging
BACKGROUND
Accommodation processes can be difficult and create hardship before a solution is found. However, having some difficulty doesn’t necessarily mean the point of undue hardship has been reached. So ruled a Saskatchewan arbitration panel in reinstating a hospital worker with rocky working relationships who was dismissed after a difficult return-to-work program didn’t go as planned.
A Saskatchewan health authority felt its attempts to accommodate a worker coming back from medical leave had reached the end of the line, but there was still more it could have done to try to accommodate the worker, an arbitration panel has ruled.
Cheryl McLean was a staff pharmacist at Melfort Union Hospital in Melfort, Sask. In July 1989, she was hired out of university by the Kelsey Trail Regional Health Authority. In December 2017, Kelsey Trail and 11 other regional health authorities were merged into the Saskatchewan Health Authority, with McLean staying in the staff pharmacist role.
In late 2013, McLean started working under a new manager who had recently joined the authority. She felt the new manager ignored her and hurt her ability to do her job. As a result, their working relationship was difficult.
Around the same time, McLean started having problems with the hospital’s administrator as well, stemming from McLean’s filing of two discrepancy reports about nursing staff turning the hospital pharmacy’s security lights off at night and entering it to obtain medications. One morning in November 2013, the administrator came to the pharmacy, threw the reports on the table and told McLean: “This has to stop.” McLean then filed an occupational health and safety incident report accusing the administrator of verbal abuse causing her emotional stress.
A couple of weeks later, McLean provided a doctor’s note saying she would be off work for medical reasons for two months until Feb. 5, 2014. The return date was later extended and McLean filed a workers’ compensation claim for a mental health injury stemming from the Nov. 21, 2013 incident.
McLean remained off work, using 119 sick leave days before applying for disability benefits on March 22, 2014. While she was on medical leave, she submitted multiple complaints about her workplace and certain hospital employees, including:
• A risk management report objecting to new pharmacy processes that she and a co-worker believed compromised patient safety and didn’t follow pharmacy standards of practice, submitted March 20, 2014;
• A report alleging professional incompetence and negligence against her manager, submitted June 17, 2014;
• A harassment complaint claiming bullying and harassment by her manager, his manager and several members of the nursing and support staff since 2012 and the health authority for providing a work environment that allowed such harassment to flourish — also submitted on June 17.
Investigation of harassment complaint led to recommendations
The health authority hired an independent investigator to check out the harassment complaints — a co-worker also submitted one — and provided a report recommending that McLean’s manager “be provided with clear direction and expectations with regard to his role” and McLean, her co-worker and her manager receive “education on constructive problem solving” to help them learn how to “respectfully resolve disputes as they occur.”
After receiving the investigation report, the health authority dismissed McLean’s harassment complaint.
McLean’s psychiatrist determined that McLean was ready to return to work on a graduated basis beginning June 16, 2015, starting with two three-hour days leading up to three five-hour days by the fifth week and regular part-time hours by the eighth week. If the plan went well, her duties and responsibilities could increase.
However, the disability co-ordinator told McLean that the health authority was reluctant to have her back and McLean didn’t return until Sept. 8, when she began by job-shadowing her manager — who had taken training on coaching skills, assertiveness, problem solving and team building.
At the completion of the first phase of McLean’s return-to-work program, the health authority determined her progress was slow and there was a lack of trust between it and McLean. By the end of October 2015, it decided to put the second phase on hold. This decision frustrated McLean and she said she wasn’t being properly orientated or treated fairly. Her manager felt she wasn’t asking enough questions to clarify things.
The health authority contacted McLean’s psychiatrist for clarification on whether her medical condition could hamper her ability to ask questions or bring forward concerns. The psychiatrist replied that her engagement would improve as she became more involved and recommended a gradual increase to her independent hours of work.
However, McLean’s manager found it difficult to find someone to supervise her next phase of the program, as everyone he asked didn’t want to do it out of concern that she would file a complaint against them. McLean’s manager continued to oversee her and provide feedback.
McLean continued to challenge the way her manager did things and didn’t agree with procedures, leading to more anxiety. By January 2016, after McLean’s psychiatrist approved more independent hours of work, the manager informed McLean that she could be subject to discipline if she didn’t obey his processes or follow instructions.
A meeting was held on Jan. 15 to discuss work standards and the concerns of both McLean and her manager. The health authority granted McLean’s request to do continuing education and return to work on Feb. 5. However, on Jan. 29, McLean’s psychiatrist sent a note stating that McLean was unable to work due to a medical condition and would be off for two months. This was later extended until the end of April.
On March 29, McLean’s psychiatrist stated that she didn’t foresee a return to work “anytime soon, at least not in the foreseeable future” — at least six months before even considering it. The sick leave was extended multiple times until Dec. 31.
On May 11, while on sick leave, McLean filed another harassment complaint against the health authority and all of its directors, managers, pharmacy and HR staff. She claimed that the behaviour of staff during her attempt to return to work was harassment and retribution against her, as there was no attempt to deal with the issue that caused her mental illness or foster an environment in which she felt safe to voice her concerns.
An independent consulting firm investigated the complaint and found no proof there was harassment.
Cleared for return to work
On Dec. 20, 2016, McLean’s psychiatrist cleared her to return to work in “plus or minus” four weeks. The health authority found this ambiguous and didn’t think the prospects of a successful return to work were any better, especially considering the morale issues that existed before McLean’s initial return-to-work attempt.
The health authority determined that it had done all it could to accommodate the worker and had reached the point of undue hardship. It terminated her employment on Jan. 16, 2017, offering a lump-sum payment equalling 10 months’ salary and all unpaid overtime McLean had accumulated. Her benefits were terminated immediately. Payment was contingent on McLean signing a release of liability.
McLean declined to sign the release and the union grieved her dismissal, arguing that the health authority didn’t meet its duty to accommodate her medical disability. The union pointed out that the collective agreement not only prohibited discrimination but also required the employer to meet with the employee “to identify the details surrounding the employee’s return to work.”
The three-member arbitration panel found that the health authority could not prove it had reached the point of undue hardship.
During the initial part of McLean’s return-to-work program from September 2015 to January 2016, her wages were paid by the disability plan with no cost to the health authority. The arbitration panel found no evidence that there were any workplace safety concerns, so McLean’s medical restrictions alone didn’t place undue hardship on the health authority, said the panel. At no point did McLean’s psychiatrist state that McLean wouldn’t make a favourable recovery — this is what both the health authority and McLean expected and what they were planning for with the return-to-work program, the panel added.
As for the issues with McLean’s attitude and other staff members who didn’t want to be part of the process, the arbitration panel found that “the employer has an obligation in the accommodation process to be proactive by taking reasonable measures to prevent and diffuse morale problems in the workplace,” which it didn’t do in this case — despite the investigation report following McLean’s first harassment complaint recommending efforts to build team relationships and work on constructive problem solving.
The arbitration panel noted that the health authority had options such as mediation and progressive discipline for culpable conduct unrelated to McLean’s disability — such as her behaviour or failure to ask questions to clarify things — or having her job-shadow someone other than the manager with whom she didn’t have a good working relationship to address the working relationship between McLean, her manager and other employees. It chose not to pursue any of these options.
“It appears the employer was content to just let the concerns of the co-workers play out with no direction from the employer to alleviate the problem,” said the panel.
The panel also found that, as of January 2016, the return-to-work program was making progress, as McLean was gradually working more hours and starting to work independent hours. The health authority was planning on continuing the accommodation process before McLean had to go on medical leave again — leading to the inference that undue hardship had not yet been reached.
The panel noted that the return-to-work program had become difficult for most of the parties involved, but it hadn’t reached the point where it wasn’t viable.
Finally, when McLean tried to return to work in December 2016 after her second medical leave, the health authority made no attempt to accommodate her, the panel said. Relations between McLean and her manager and co-workers had probably worsened because of McLean’s second harassment complaint, but again the panel found that no warning or discipline was issued for any non-disability-related misconduct. Instead, when McLean’s psychiatrist cleared her to return to work, the health authority terminated McLean’s employment.
The arbitration panel acknowledged that McLean didn’t make things easy for herself but that, ultimately, the health authority bore responsibility for managing the accommodation process better and addressing the staff morale issues. There was no cause for dismissal and undue hardship had not been reached in the accommodation process.
The health authority was ordered to reinstate McLean to her position with compensation for lost wages, seniority and benefits.
For information see:
• Health Sciences Association of Saskatchewan v. Saskatchewan Health Authority (Successor of Kelsey Trail Health Region), 2019 CanLII 70609 (Sask. Arb.).
