Violent, disabled worker temporarily reinstated

A mentally disabled worker with a propensity for violence was fired. The union grieved and said the worker should be reinstated and accommodated.

When a mentally disabled worker with a propensity for violence was fired, the union grieved. The union said the worker should be accommodated and reinstated.

J.F. began working at Agropur in 2000. J.F. was working as a Pouch Pak Machine Operator at the industrial dairy when he was fired on October 4, 2010.

J.F. had difficulties with attendance. He also laboured under the burden of significant mental disabilities stemming from traumatic childhood sexual abuse.

J.F. had been diagnosed with numerous mental health conditions, including post-traumatic stress disorder, attention deficit hyperactivity disorder, impulse control disorder categorized as explosive and a number of cluster B personality disorders.

Following a workplace altercation in October 2009, J.F. applied for short-term disability benefits. J.F. said that he was unable to concentrate, that he was extremely irritable and that he was experiencing homicidal rage.

Homicidal ideation

J.F. received two months of inpatient treatment at a psychiatric facility beginning in April 2010.

Three separate clinical psychiatric assessments and his family doctor confirmed that J.F. was experiencing “homicidal ideation.”

J.F. was volatile and unpredictable, particularly when under the influence of drugs and/or alcohol. He had a history of physical violence and had been incarcerated for assault. One of the consulting psychiatrists did not feel safe treating J.F. and she transferred his treatment to a male colleague. J.F. was observed to continually refer to his intention to kill those who had abused him. Consensus in the clinical assessments was that J.F. would endeavour to act upon his plans.

In August 2010 — while still on leave after his discharge from the psychiatric facility — J.F. made an unscheduled appearance at work accompanied by his pit bull terrier. J.F. was turned away at the entrance after he admitted to a supervisor that he was not feeling very well.

J.F. made another attempt to enter the plant a few weeks later. When stopped by security, J.F. began to repeat the names and phone numbers of a supervisor and an HR staffer. J.F.’s behaviour was perceived as threatening. Security was increased.

On Oct. 4, 2010, J.F. was fired. The union grieved.

The employer accepted that J.F. suffered from a disability and that it was obligated under the Human Rights Code (the Code) to accommodate his disability up to the point of undue hardship.

No cure

The employer argued that it had satisfied its duty under the Code. It had granted J.F. a medical leave of absence. It had consulted with the union about appropriate accommodations and it had made long-term disability (LTD) benefits available to J.F. upon termination — an offer that he had failed to act upon.

The nature of J.F.’s disability was such that a “cure” was not foreseeable and there were no guarantees that J.F. would be able to stabilize his behaviour by consistently taking his medications while abstaining from drugs and alcohol.

Moreover, one of the clinical assessments affirmed that J.F. was susceptible to being overwhelmed by the noise of the workplace and the stress of managing multiple tasks and co-workers.

The employer said J.F.’s behaviour was erratic. He had a history of violent outbursts and physical violence. The employer said it had a statutory obligation to ensure the safety of its workers. This included taking every reasonable precaution to protect its employees from violence or the threat of violence in the workplace, the employer added.

The union challenged the employer’s assertion that its efforts to accommodate J.F. had crossed the threshold of undue hardship. It was true that the symptoms of J.F.’s diagnosed conditions were associated with the potential for violence. It was also true that J.F.’s conditions were not amenable to cures. However, the union said, J.F.’s symptoms could be controlled with treatment.

It was important to remember that J.F. had maintained his job for 10 years. He was making significant progress in treatment, the union said, and there was no reason to doubt that he could return to active employment with the proper accommodations.

Access to long-term disability benefits

The union acknowledged that J.F. was not in a position to return to work immediately. However, the key question was whether or not this was an appropriate case for reinstatement. The union argued that it was.

As an alternative, the union said, J.F. should be reinstated — temporarily if necessary — for the limited purpose of enabling him to apply for long-term disability benefits under the employer’s plan.

The Arbitrator agreed with the union’s alternative proposal. Reinstatement to active duty was not an option in this case, the Arbitrator said.

“It is fair to say that where an employee threatens violence in the workplace, or can objectively be considered a threat, arbitrators do not direct reinstatement.”

The Arbitrator acknowledged that J.F. was continuing with treatment and making progress. The Arbitrator said too that employers could not avoid their obligations under the Code to accommodate workers with mental illnesses by simply asserting that mentally ill workers present a threat. Objective evidence was necessary to establish undue hardship.

In this case, there was J.F.’s observed conduct and behaviour to go on along with recent medical reports, which stated that J.F. continued to suffer from “occasional brief psychotic outbreaks.”

The Arbitrator agreed with the union that employers could not demand certain success for accommodated employees. However, the Arbitrator said, employers are “entitled to consistent and persuasive evidence that an employee with serious, troubling and incurable psychiatric disorders possesses little or no cause for concern in the case of reinstatement. “

In this case, that evidence was absent.

J.F. failed to apply for LTD benefits when he was terminated. He should have done so, the Arbitrator said.

J.F. was ordered reinstated for a period of three months solely for the purpose of filing an application for LTD benefits.

Reference: Agropur Division Natrel and Teamsters Local 647. William Kaplan — Sole Arbitrator. John West for the Employer. James Nyman for the Union. Nov. 15, 2012. 35 pp.

Mark Rogers is a writer and editor who specializes in labour relations and occupational health and safety.

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