Employer told employee not to come back without proof of mental health after third instance of discipline for angry behaviour
Three times unlucky
Workplace harassment is a serious issue that employers need to address if it rears its ugly head. When an employee is prone to angry outbursts at work, that can create a problem if other employees feel threatened. But how should the employer approach the situation if it suspects a mental illness?
As one employer discovered, employers can’t just act on a whim. Careful examination of the situation is usually needed, and sometimes an angry employee is just an angry employee.
An Ontario company did not have the authority to require a psychiatric evaluation before allowing an employee disciplined for three instances of angry misconduct back to work, an arbitrator has ruled.
Christopher Gallardi was an employee of Niagara Peninsula Energy (NPE), an electricity distribution company in Niagara Falls, Ont. On Jan. 18, 2011, Gallardi was working in NPE’s garage washing the floor with a high-pressure hose while another employee, who was marginally a supervisor, was discussing painting new lines with a contractor. Gallardi got too close to the others and splashed water and dirt from the floor on them. When the co-worker asked him Gallardi to move to another part of the garage, Gallardi replied with a vulgar insult and told the co-worker they should move. The co-worker filed a workplace harassment complaint.
NPE interviewed the co-worker and Gallardi about the incident, and the co-worker stated that he didn’t think Gallardi intentionally got them wet, but he was shocked by Gallardi’s response to the request to move. The co-worker added that although they sometimes they spoke like that to each other, the co-worker was bothered by the incident because it happened in front of an outsider — the contractor. The co-worker also mentioned he was on pain medication and may have overreacted. Though he stayed away from Gallardi for a couple of days, they continued to work together without incident. The co-worker eventually said he wanted to retract the complaint and only wanted management to talk to Gallardi about his language.
NPE interviewed Gallardi, who felt there was no issue that needed to be discussed. He read the incident report and laughed, saying “nothing happened” and there was no problem. Gallardi refused to discuss it further and he was suspended with pay for five days pending further investigation. NPE determined that Gallardi’s insults to the co-worker constituted a vexatious comment that was unwelcome, contrary to its policy on workplace harassment.
On Feb. 3, 2011, NPE gave Gallardi a discipline letter stating that his actions with the hose were unsafe and he acted aggressively towards a co-worker while in the presence of a visitor. In addition, he refused the order to move away from the co-worker, which NPE considered disrespectful and a violation of its Respect in the Workplace policy. Gallardi was suspended without pay for five days with a warning that further misconduct could result in more severe discipline, up to and including dismissal.
Courier felt uncomfortable with suspended employee
On Jan. 26, while Gallardi was on suspension as NPE investigated the garage incident, the company sent him a letter by courier. The courier, a woman, delivered the letter to Gallardi’s house. When she arrived, Gallardi approached her, affirmed he was Gallardi, and grabbed the letter from her. The courier felt uncomfortable because he didn’t say anything to her other than some mumbling under his breath and his body language was “rigid and stiff.” He ripped open the letter, shook his head, and mumbled again. The courier felt nervous and quickly got back in her car.
The next day, the courier related the experience to an NPE receptionist, who informed NPE management. NPE interviewed her about the incident and asked her to fill out a formal complaint. The courier consented, though she didn’t feel the conduct warranted discipline.
NPE asked Gallardi to document his version of events, and Gallardi told the union that he accepted a letter from a courier and she left, with nothing else happening. However, NPE felt Gallardi’s behaviour violated its policy, which included all “employees, contractors, customers and visitors.”
NPE suspended Gallardi a further three days without pay for acting in an aggressive and intimidating manner towards the courier and his refusal to co-operate in its investigation of the matter. He was given another warning about further misconduct and a meeting was scheduled to discuss Gallardi’s two incidents of harassment.
The meeting was held on Feb. 14 with Gallardi, a union representative and four members of NPE management. The garage incident and resulting discipline was reviewed and Gallardi was asked about the courier incident. Gallardi insisted nothing happened and NPE emphasized that it was important he learn from the discipline meted out for his misconduct. Gallardi was repeatedly asked about the courier incident, and Gallardi became agitated and commented about a “witch hunt.” When he was told NPE had investigated the courier incident and issued a report, Gallardi stood up and stated, “That is all I am going to say and then I am leaving. This is personal.” Gallardi then walked out of the room and slammed the door.
NPE intended to discuss the arrangement for Gallardi’s return to work after his suspensions, but he left the meeting before it had the chance. The company was concerned about the reason behind his repeated angry outbursts, so it decided to suspend him indefinitely without pay. According to the letter it sent to Gallardi, he would not be allowed back at work until he provided a written acknowledgement of his responsibility to conduct himself respectfully, properly respond to managements queries and work “in a collegial fashion” with co-workers and management. Gallardi was also required to show proof of enrolment in an anger management program provided by NPE’s employee assistance program and arrange a psychiatric evaluation to demonstrate his ability to work and address any accommodations he might need. In the meantime, he was banned from NPE property or contact with its employees.
Gallardi and the union grieved all three instances of discipline, arguing if NPE thought there was a possibility he had a mental issue, it should not have simply suspended him. They also argued NPE didn’t have the authority to demand a psychiatric examination.
The arbitrator agreed that Gallardi’s use of profanity and name-calling in the garage was harassing behaviour, but the co-worker to whom it was directed did not feel threatened. The co-worker acknowledged that the reason for the complaint was not the conduct itself, but that it happened in front of a contractor. However, this made Gallardi’s conduct vexatious and unwelcome. In addition, the arbitrator found though the co-worker was marginally a supervisor, he wasn’tGallardi’s supervisor. The arbitrator also found no evidence that the way Gallardi was handling the hose was unsafe. The arbitrator found the five-day suspension without pay was appropriate for Gallardi’s harassing behaviour in the garage.
However, the courier incident was a different story. It took place at Gallardi’s home and there was no indication he acted hostile towards the courier, though he may have been in a bad mood, and NPE’s harassment policy did not apply. The courier may have felt uncomfortable but acknowledged he didn’t do anything that would warrant discipline. The arbitrator found there was no culpable misconduct by Gallardi towards the courier and the three-day suspension was unnecessary.
Anger not evidence of mental illness: Arbitrator
Gallardi’s behaviour at the meeting, though it may have been a product of frustration, was hostile and deserving of a disciplinary response, said the arbitrator. Speaking angrily, leaving in the middle of a meeting and slamming the door was culpable misconduct. However, the arbitrator found NPE’s response, though it may have been trying to find out if there was a psychiatric issue, was disciplinary in nature. The loss of pay for an indefinite period of time while attempting to schedule an examination and get the report to the employer did not take into account any doubts NPE had about Gallardi’s fitness for work, said the arbitrator.
The arbitrator found some inconsistency in NPE’s approach. The company maintained Gallardi’s misconduct for the garage and courier incidents was culpable, but used pattern of misconduct from all three incidents as justification for requesting a psychiatric evaluation.
“It is quite conceivable that an employer may respond to conduct with discipline believing at the time that such conduct was culpable, but as unusual conduct is repeated and a pattern emerges, the employer has justifiable reason to believe that its initial assessment was in error, that the pattern of conduct is indicative of a mental health issue,” said the arbitrator.
However, the sliver of doubt NPE had about Gallardi’s state of mind was not sufficient to be reasonable grounds to require an evaluation before returning to work, said the arbitrator. The arbitrator also found there was no safety issue to justify the demand, as nobody involved in the incidents felt threatened, and noted Gallardi had completed an anger management program, which in itself could address NPE’s concerns.
The arbitrator upheld the five-day suspension for the garage incident, struck down the suspension for the courier incident, substituted a 30-day suspension for the meeting incident and quashed the requirement for a psychiatric assessment. NPE was ordered to strike the second suspension from Gallardi’s discipline record and compensate him for any missed income from that and the indefinite suspension.
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