Balancing human rights and OHS
Ontario decision deals with reintegration of police constable with significant mental health issues after a leave of absence
Apr 16, 2019
Police officers march down main street during funeral services for OPP Const. Vu Pham in Wingham on March 12, 2010. Pham was fatally shot while on duty. REUTERS/Mike Cassese
By Stuart Rudner and Brittany Taylor
Across all jurisdictions in Canada, employers are obligated to provide employees with a discrimination- and harassment-free workplace and to take reasonable steps to ensure the health and safety of all workers. These obligations are usually complementary.
However, there are circumstances where these duties will not operate harmoniously and will, in fact, directly conflict.
An obvious example is a situation where accommodating an employee’s disability, such as addiction, by allowing him to remain in a safety-sensitive role could lead to an unacceptable risk to the employee, other workers and members of the public.
Human rights legislation contemplates this potential conflict, which is why an employer’s duty to accommodate is limited by the concept of “undue hardship.” In other words, the law anticipates there will be situations where an employer’s duty to take reasonable steps to ensure a safe workplace for employees will take precedence over an employee’s individual right to accommodation.
This struggle to balance competing rights was illustrated in the 2018 arbitration decision The Ontario Provincial Police Association v The Ontario Provincial Police. This decision dealt with the reintegration of an employee with significant mental health issues into the police force after a leave of absence.
What makes this decision particularly interesting is it was not the employee being reintegrated who pursued the grievance; rather, four of the employee’s co-workers filed grievances alleging the employer had violated their rights on a number of grounds, including failing to provide them with a safe workplace pursuant to the Occupational Health and Safety Act.
The employee in this case suffered from severe depression, among other issues, and had attempted suicide on multiple occasions. When her doctor confirmed she was able to return to work after a leave, the OPP required her to attend an independent medical examination (IME). The results indicated the employee could return to work, but recommended that a safety plan be put in place that would allow co-workers or supervisors to notify a designated contact person if they had concerns about the employee.
In particular, it was necessary to have a framework for all parties to be alerted to any potential risk of self-harm or psychiatric decompensation, especially given that the employee would be carrying and have access to firearms and have use of force options available to her.
In fact, following her return, several of the employee’s co-workers repeatedly raised concerns about her to the OPP. It was quite evident she continued to struggle with managing her emotions, leading to a number of outbursts and incidents in the field, and was still experiencing suicidal thoughts.
Some of her co-workers believed she posed a safety risk to her fellow employees and to the public. The OPP’s reaction to these concerns appeared to be disinterest, if not outright disdain. The co-workers were told they were expected to be “professional” and to “make it work.” One superintendent went so far as to advise team members that if they wanted to submit a complaint about working with the employee, they should include their request to transfer as well.
Sadly, the employee ultimately suffered a severe relapse and attempted suicide in the workplace. She was discovered by a co-worker and rushed to the hospital. Fortunately, she survived the attempt, but the impact on her co-workers was significant.
One individual in particular, Const. Antaya, felt he was partially responsible for the employee’s attempted suicide, as he had made a complaint about her following an altercation in the field. He became ill and ultimately had to be off work for a period of time on a medical leave of absence.
Four of the co-workers, including Antaya, pursued grievances against the OPP, alleging, among other things, it had failed to provide them with a safe workplace.
The arbitrator noted that the IME conducted prior to the employee’s return to work had provided clear and detailed recommendations regarding how to proceed with reintegration, including the safety protocols that were to be put in place. Unfortunately, other than providing the employee with a graduated return to work, the OPP had failed to implement any of them.
In particular, the OPP had completely failed to implement the safety plan which the IME had identified as “imperative” to her safe return to the workplace. The arbitrator went as far as to conclude that everything that had occurred “would likely have been avoided if this safety plan had been put into place.”
Without the safety plan, the employee’s co-workers, including the grievors in this case, had no mechanism “to voice their observations and concerns, where they could have been relayed directly to (the employee’s) treatment providers.” The evidence clearly suggested that if this plan had been implemented, the employee’s relapse would have been detected well in advance of her suicide attempt and likely even before many of the altercations that caused such stress for her co-workers.
The arbitrator acknowledged the tension that exists between the rights of a disabled employee and the rights and concerns of the employee’s co-workers, including health and safety concerns. However, in this case, the OPP had completely failed to consider the risks to the health and safety of the employee’s co-workers or to the public even when they were brought to its attention.
The arbitrator concluded that the OPP created a health and safety risk for the employee and her co-workers by failing to respond to clear evidence that the employee was relapsing, failing to adhere to its own workplace policies with respect to accommodation and health and safety, and failing to develop or maintain a reasonable return to work plan which included the recommendations set out in the IME.
While the employee’s right to accommodation of her mental health disability was important, the arbitrator noted that this right could not “completely override” the rights of her colleagues to a safe workplace.
Balancing competing rights is never easy, and that is particularly true when weighing the right to accommodation with the right to a safe workplace. There is no absolute rule; every situation must be assessed based on its own unique circumstances and factors.
It is crucial that this assessment is not done in isolation; rather, employers should consider the totality of the circumstances, including the rights of other employees who may be impacted, when determining if accommodation is possible in the circumstances.
Brittany A. Taylor is a senior associate at Rudner Law in Toronto.
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Stuart Rudner is the founder of Rudner Law (RudnerLaw.ca
), a firm specializing in Employment Law and Mediation. He can be reached at firstname.lastname@example.org
, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.