'After they disciplined him, they gave him support, but expected him to function in the workplace and held him accountable'
“It's always important to hear out your employee when you're faced with requests for accommodation, but that doesn't obviate the need for them to meet their own duty to accommodate,” says Ruth Trask, an employment lawyer at Stewart McKelvey in St. John’s, after the Newfoundland and Labrador Board of Inquiry dismissed a worker’s discrimination complaint despite the fact his disability was a factor in the termination.
“The thing that really jumps out at me from this case is that they asked the employee very directly: ‘What can we do?’” says Trask. “And he said, effectively, there's nothing.”
Major depressive disorder
The worker was employed at a Sobeys grocery warehouse in Conception Bay South, N.L. He was diagnosed with major depressive disorder in 1999, which inhibited his ability to engage in normal social activities. Anger was a common manifestation of his condition and he sometimes didn’t feel in complete control of his actions and emotions. His doctor diagnosed him with depression in 2003.
The worker sometimes became frustrated at work and caused incidents involving kicking empty water cooler bottles. His manager told him that this type of behaviour was unacceptable and was contrary to Sobeys policies. He suggested that the worker get help, but he didn’t discipline him.
Several employees said that they were afraid of the worker because of his tendency to blow up.
In late 2013 or early 2014, there was an incident in which the worker picked up a garbage bin and the lid struck a colleague. However, it wasn’t reported.
It’s the kind of incident that should be documented, says Trask.
“At the time, it might have seemed not necessary to deal with, but I often remind employers to try and deal with situations as they arise and not allow them to pass by without taking action,” she says. “It might have just laid more groundwork for [future disciplinary action].”
Sobeys had a respectful workplace policy that stated employees who breached it “may be subject to discipline up to and including termination.” The policy also described intimidating behaviour such as threats and causing intentional property damage as examples of workplace violence.
Worker threw printer
In October 2014, the worker was using a company printer that was malfunctioning. He had been unsuccessfully trying to get management to fix it for months, so he was frustrated and threw the printer across the warehouse. Management considered terminating the worker’s employment, but they decided to give him a warning letter advising that future breaches of policies would result in immediate termination. The worker agreed to receive counselling and to take an anger management program as a condition of continued employment.
A few months later, in April 2015, the worker underwent an independent psychiatric evaluation (IPE). The psychiatrist recommended that he return to modified work over a six-week period. The worker didn’t request such a plan, but Sobeys implemented it with informal check-ins with his manager.
Sobeys acted wisely in warning the worker about breaching its policies and then supporting him after the printer incident – and making it clear that his behaviour was unacceptable, says Trask.
“They had a really clear policy that prohibits violence and outbursts at the workplace, that was clearly written to say that this type of behaviour is not going to be acceptable,” she says. “So, after they disciplined him, they gave him the support, but then they expected him to be able to function in the workplace and they held him accountable for that.”
Threw bin at assistant manager
In November 2015, the worker was unloading pallets with a backlog of trucks waiting. The worker felt pressured and he accidentally hit a shelf with a pallet jack, causing some reclamation bins to fall to the floor and spill their contents. Another worker laughed at him and, as the worker knelt to pick up the mess, he became agitated and knocked a bin into the wall next to the manager’s office door.
An assistant manager went to see what was happening and observed the worker acting angrily and accusing the co-worker of laughing at him. According to her, the worker picked up the reclamation bin and threw it towards the office in her direction. She moved out of the way to avoid being hit.
The manager met with the worker the next day and the worker said he had been having a bad day. The worker also admitted to yelling at the co-worker and throwing the bin because he was frustrated. He added that it could happen again because he could get frustrated at any time.
The worker’s admission that another incident could happen again made further accommodation difficult, says Trask.
“Giving him that opportunity to show contrition – if he apologized and wanted to try new strategies in the future, the employer might have been required to continue to accommodate for somewhat longer, and perhaps he could have improved his behaviour,” she says. “But in the circumstances, the employee had nothing to offer the employer.”
“Always listening to that person and making sure that they have an opportunity to say their piece makes a big difference at the end of the day to whether or not you're going to be found to have met the duty to accommodate,” adds Trask.
The co-worker acknowledged that he laughed and confirmed that the worker was angry. He didn’t see the worker throw the bin, but he saw it “flying through the air” and almost hitting the assistant manager.
The worker’s wife brought a doctor’s note the next day stating that the worker was unfit for work for one month.
Concern over workplace safety
Sobeys decided that, since the worker admitted to throwing the bin as well as yelling at another employee, he should be terminated. They also considered that the worker couldn’t guarantee that he wouldn’t continue to have angry outbursts in the future, making them concerned that someone would be hurt from the worker’s violent behaviour.
The worker was terminated Nov. 10 and the worker filed a complaint of discrimination, claiming that he wasn’t accommodated to the point of undue hardship. He also said that he hadn’t intentionally thrown the bin and instead accidentally knocked it backwards with his arm.
The board noted that the worker had a mental illness that was protected from discrimination under the Newfoundland and Labrador Human Rights Act. In addition, the worker’s termination was an adverse impact.
The board found that the worker’s condition diminished his ability to control his actions during the incidents. Since his disability contributed to his misconduct, it was a factor in his dismissal, completing the test for prima facie discrimination, said the board.
Undue hardship
However, the board found that Sobeys took adequate steps to accommodate the worker by allowing medical leave and implementing a modified-return-to work plan. It also chose to have the worker go to counselling and anger management sessions rather than terminating him after he threw the printer, the board said.
“The employer kept trying, over a period of time, to repeatedly accommodate him and kept reminding him to improve his behaviour, and in the meantime giving him the [IPE] and accommodations individual to him, which is always a key component of these accommodations cases,” says Trask. “There's really nothing else there, because everything that was asked for was given and nothing more was requested or could have been done.”
The board found that Sobeys consistently enforced its policies that were made in good faith, made efforts to accommodate the worker, and warned him that he was at risk of termination for any future policy violations. It also offered support to the worker, but the worker said that he could succumb to anger at any time.
The board also found that safety was important for Sobeys and either of the incidents could have injured someone. Requiring an employer to accommodate workplace violence would be undue hardship, said the board in dismissing the complaint.
Even though the board agreed that the worker’s disability was a factor in his termination, this case is an example of circumstances where termination is an acceptable response by the employer, says Trask.
“[The board] went through the test and found that the safety standard – which is a violence-free workplace – is rationally connected to the performance of the job and, of course, the employer has a statutory obligation to maintain a violence-free workplace,” she says. “[The board also found] that the employer consistently enforced its policy.”
Ultimately, the situation reached a point where safety had to take priority for Sobeys – a situation where accommodation was no longer possible, says Trask.
“I think in other provinces too, but certainly in Newfoundland and Labrador there's a statutory duty not just to maintain safe workplaces, but to prevent violence in the workplace,” she says. “If the risk is that an employee is going to have an outburst that's going to hurt somebody else, then it's more difficult for the employer to knowingly allow that to continue in the workplace.”
See Reid and Sobeys Inc., Re, 2022 CarswellNfld 293.
