Firefighter claimed bad attendance record was caused by mental disability but arbitrator found he really just handled his personal problems poorly
Too little too late
When should an employee raise the issue of a disability and request accommodation? When should an employer consider accommodation? Should an employer wait for a direct request or take a hint? These are all questions with which employers can wrestle when it comes to figuring out the duty to accommodate employees with disabilities.
Is an employee dropping hints enough? And what really constitutes a disability? An Ontario firefighter’s claim that he had a disability — after he was dismissed — seemed to be a little late coming, and the nature of the disability left the fire department a little mystified. It was left to an arbitrator to sort it all out.
An Ontario firefighter’s dismissal for missing work without permission has been upheld by an arbitrator, despite the firefighter’s claim he suffered from a disability and the fire department knew about it.
Kim Elliott was a firefighter with the Windsor, Ont., Fire and Rescue Service who was hired in 1991. Between 1995 and 2004, Elliott was disciplined several times for attendance problems, including not notifying the service of absences, multiple instances of being late for his shift, changing shifts without permission and improperly summoning on-duty firefighters to his home for assistance. Along with various verbal and written reprimands, Elliott was suspended four times for varying lengths of time. Despite the fact he was considered to be doing a good job performance-wise, on March 29, 2004, Elliott was given a warning letter following a suspension for an unauthorized absence that stated if he missed any more work without permission, he would likely be dismissed.
In all, Elliot’s attendance record relating to unauthorized absences was the worst in the Windsor fire department. This caused great concern with the department because a certain number of firefighters were required to operate each fire truck and if anyone was missing, a truck was taken out of service. Shifts were typically 24 hours long twice a week, so a one-shift absence without a replacement could make a truck unavailable for 24 hours. Following an absence in 2003, Elliott was asked if he had any medical problems that could prevent him from coming to work on a steady basis. Elliott said he did but wanted it kept between him and the chief and deputy chief and mentioned problems with his marriage as well as legal and financial difficulties. The deputy chief suggested a follow-up meeting with the union but that didn’t happen.
Medical leave for stress
In late 2001 and early 2002, Elliott was off work for several months on an approved medical leave for “severe and incapacitating stress.” His claim for long-term disability benefits included a diagnosis of adjustment disorder caused by financial and marital problems, job pressures and community difficulties.
When Elliott was given medical clearance by his psychologist to return to work in 2002, the fire department made it clear that his discipline record would continue where it left off and it would not be a clean slate. The psychologist stated this would not be a problem and Elliott didn’t indicate he had any disability that needed to be accommodated or would affect his attendance at work.
In late June and early July 2004, Elliott missed five shifts without informing the fire department. Elliott was called into a meeting to discuss the absences and he said “there were barriers” that sometimes kept him from going to work, but he would try to improve his attendance. He also said that he was under a doctor’s care and would provide a note. The department asked him to provide medical evidence to explain and validate his absences.
Elliot brought in a letter from his psychologist that stated Elliott had not been treated during his absences and couldn’t comment on his stress level. The doctor said he had treated Elliott in the past for “chronic stressors that periodically create significant difficulties for him.” The department also learned a little later that Elliott had been in jail during the last three shifts he missed due to a breach of his bail terms following an arrest for an altercation with his ex-wife.
On July 30, 2004 — a week after the meeting to discuss the absences — Elliott was late for work without an acceptable reason. On Aug. 13, his employment was terminated. Elliott contested the termination, arguing his chronic mental problems constituted a mental disability, as when he was provoked emotionally he was unable to think rationally or consider the consequences of his actions. He said the fire department was aware of his mental and emotional problems — he had told the deputy chief about his personal problems and his related depression and anxiety, as well the problems leading to his medical leave — and that he was being treated by a psychologist and his dismissal was the result of his attendance problems, which were caused by his mental disability.
The fire department argued there was no evidence supporting a disability or anything that would prevent Elliott from at least notifying it of his absences. It said there were no indications his attendance would improve in the future, so the only possible accommodation would be to simply allow Elliott to be absent without permission, which wasn’t possible in the fire department’s workplace environment. The fire department also pointed out the alleged disability wasn’t raised until after the termination and no accommodation had been formally requested before — despite the many previous instances of discipline for attendance problems. In addition, the psychologist didn’t formally diagnose a disability for Elliott.
Vagueness about mental disorder
The arbitrator noted when Elliott was at work, he was considered to be doing a good job. Also, though he may have mentioned some of his problems and had to take a medical leave, at no point did he indicate that he couldn’t perform his full duties and need accommodation when he was at work. Also, if the mental disorder caused Elliot’s absences, he didn’t indicate that was the case other than for his medical leave in 2001, said the arbitrator, which suggested if his disorder was a disability, it didn’t interfere with his work and wasn’t easy to recognize.
The arbitrator found when Elliott went on his 2001 medical leave, the fire department was told he was being treated for stress and emotional problems. However, he was cleared to return to work as normal at the end of the leave and there was no indication there would be ongoing problems. This did not qualify as notice of a disability, said the arbitrator. Also, though the psychologist indicated on the long-term disability claim that Elliott had a mental disorder, he didn’t tell the employer of this diagnosis.
“While it (advised) of various stressful matters, the existence of stress in a person’s life is common,” said the arbitrator. “The existence of stress and problems in dealing with that stress is not commonly viewed as being an indication that the person has a mental disorder.”
The arbitrator also found the problems Elliott discussed with the deputy chief regarding his family and financial problems were not diagnosed as disability-related and could not be considered notice of a disability. The same could be said for Elliott’s comments about “barriers” in his disciplinary meeting in July 2004, when he didn’t provide any specific information about his problems.
The arbitrator noted all people had to deal with issues in their personal lives and organize their time and priorities. While some are better than others at this, being bad at it — such as Elliott seemed to be — could not be considered a mental disorder. Some mood problems could be related to a mental disorder, but Elliott failed to prove this was the case for him. Though Elliott’s way of handling his problems was unfortunate or even dysfunctional, this didn’t demonstrate he had a mental disorder that disabled him, said the arbitrator.
“I accept that (Elliott) had an ‘inability to follow through’ in dealing with his problems and had trouble focusing ‘on the underlying reasons and motivations that lead him into difficulty,’” said the arbitrator. “But I do not think that the term mental disorder in the (Human Rights) code was intended to mean problems in dealing with stressful situations nor to mean an inability or unwillingness to address those unfortunate responses.”
The arbitrator found the fire department was not made aware of a disability by Elliott. It was reasonable to request medical information supporting his absences and, without it, it had a right to discipline Elliott. Given Elliott’s past disciplinary record for absences and his previous warning, dismissal was an appropriate level of discipline for Elliott’s five-shift absence in June and July 2002.
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