Reinstatement into hectic workplace not possible with continued risk of violent episodes: Arbitrator
An Ontario arbitrator has found a frequently-absent employee should not be reinstated to active duty but should be reinstated for the purposes of applying for long-term disability (LTD) benefits.
Agropur Division Natrel, a manufacturer of dairy products based in Longueuil, Que., had a 38-year-old labourer at its Toronto plant that had been diagnosed with “severe mental health conditions” stemming from a traumatic childhood. The employee’s problems included post-traumatic stress disorder, impulse control disorder and attention deficit hyperactivity disorder, as well as some personality disorders.
The employee was hired in 2000 and there were no problems until 2009. The employee began having serious difficulty and sought treatment for his mental issues. He went on short-term disability benefits and spent two months at a health centre in a program for traumatic stress recovery. He was released in late June 2010, with the expectation he could return to work with accommodations in August.
Agropur began discussions with the union on how to accommodate the employee, but the employee’s behaviour became erratic and he experienced another crisis, including an incident in early August where he tried to enter the plant with his dog. In mid-August, he tried to enter the plant again and when he was stopped by security, the employee repeated the names and phone numbers of his manager and an HR person. Agropur considered this threatening behaviour and increased security at the plant and for the manager and HR person.
Safety concerns trumped accommodation efforts
Agropur determined it could not accommodate the employee’s disability because his potentially violent and erratic behaviour was not conducive to its workplace environment, which was a heavily mechanized dairy production facility where employees had to multitask at a constant pace and any slowdown would be costly to the company. Despite assessments that the employee was improving with proper care, Agropur was concerned his presence would present a safety risk. Agropur felt it had made reasonable efforts to accommodate the employee but didn’t see how it could work, and terminated his employment with full termination and severance pay on Oct. 4, 2010. The company encouraged the employee to apply for LTD, but he didn’t. Following the termination, the employee was charged with multiple criminal offences for violent behaviour.
The union challenged the termination, pointing out the employee’s condition had stabilized through ongoing care from a doctor and psychiatrist and the termination decision was made too quickly. The employee had also enrolled in an education for people with mental health issues to assess their readiness for full-time work and completed the Canadian Mental Health Association’s community volunteer program. The termination constituted discrimination based on disability — the Ontario Human Rights Code included mental disorders as disabilities — said the union. The union claimed the medical evidence — including assessments from doctors — indicated the employee’s mental issues were controllable with treatment as long as he stayed away from substance abuse, especially considering he was able to do his job for 10 years before his most recent crisis. It demanded reinstatement following a determination of whether accommodation arrangements could be made. The union also indicated that if it wasn’t possible to reintegrate the employee into the workplace, he should be reinstated in order to allow him to get LTD coverage under Agropur’s LTD plan.
The arbitrator found there were indications the employee had made progress in his recovery and his efforts showed he was committed to dealing with his issues. However, the medical reports indicated he still suffered from outbreaks of violent and threatening behaviour and there was no indication the risk for this would be eliminated, particularly since the employee had unsuccessfully attempted to moderate his behaviour previously.
The arbitrator also found the workplace was fast-paced and stressful, and these were conditions that could trigger the employee’s condition. Even if it was only episodic, the type of workplace at Agropur’s plant made it likely he would experience those episodes. In addition, the employee’s unexpected appearances at the plant in August demonstrated this was an ongoing concern that could threaten the safety of other Agropur employees, said the arbitrator.
“An individual who suffers from ‘occasional brief psychotic outbreaks’ cannot be reinstated to employment,” said the arbitrator. “The risks to the workplace, and the men and women in it, far outweigh the benefits to an individual, including a person, like the (employee), who is, self-evidently, suffering from a disability that attracts the attention and protection of the code.”
The arbitrator determined Agropur had investigated accommodations to the point of undue hardship and was unable to bring the employee back into the workplace due to safety concerns in the busy and high-stress workp environment. However, though the employee didn’t take advantage of an opportunity to apply for LTD at his termination, Agropur was ordered to reinstate the employee solely to give him another opportunity to apply for LTD. The reinstatement was to be for three months and was without compensation.
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