The grievor had been exhibiting uncharacteristic behaviour: she had even been aggressive on several occasions. She was given a one-day suspension. At about this time, the grievor’s father wrote to the board to make them aware of his concern over her mental health. Shortly afterward, the grievor was hospitalized.
She returned to work after about a week with a medical certificate from the psychiatrist who was treating her, declaring that she was fit with no restrictions.
Over the following weeks, her work performance deteriorated, and many of her duties were either not being performed, or not performed to the proper standard.
More importantly, she was becoming unstable and belligerent with other staff. She was suspended for three days and placed on sick leave. Again, she returned to work with a doctor’s note that did not specify any limitations.
The situation continued to the point that teaching staff were very uncomfortable and did not want to be alone with her.
At the end of a month, and after receiving several disturbing reports from colleagues and other staff, the board suspended her for 10 days pending an investigation, after which she was terminated.
Grievor was disabled
The medical evidence, which was produced during the hearings, showed that the grievor suffered from schizophrenia.
The arbitrator wrestled with the question of whether he could admit post-termination evidence. The rule, established by the Supreme Court in Quebec Cartier, is that post-termination evidence is admissible only in cases of non-disciplinary termination, such as innocent absenteeism, and not for determining just cause in disciplinary cases. This, he suggested, was “unfortunate and not entirely consistent with the approach to Human Rights Act accommodation in some of the jurisprudence.”
He also had to deal very delicately with medical evidence of the grievor’s psychological condition. And some of that evidence consisted of handwritten notes that were not easily deciphered.
“When and the extent to which an employer’s duty to accommodate arises depends in part on the relevant information that the employer is or ought reasonably to be aware of. In addition to the legal privacy interests and consideration [of medical confidentiality] …, as both a legal and a practical matter these are magnified when the confidential medical information relates to a mental disorder.”
Further, neither the grievor nor her physicians had at any point informed the board of the grievor’s condition.
Employer failed to accommodate
This, however, did not exonerate the board, in the view of the arbitrator. “When an employee begins to behave in an inexplicably bizarre manner an employer has an obligation to obtain medical advice or assistance and consider accommodation options.”
Despite the fact that neither the grievor nor the union nor any of several physicians had suggested that an accommodation should be considered, the arbitrator found that the grievor was probably suffering from schizophrenia, was not fit to return to work and her continued employment was untenable.
The arbitrator found that the grievor had not been accommodated for her disability and should be reinstated, but solely for the purposes of allowing her to apply for L.T.D. benefits. In the event that she failed to apply, or that her application were denied, he awarded her 12 weeks’ wages in lieu of reinstatement.
