Employee had scent sensitivity, but also several instances of discipline
The dismissal of a Nova Scotia employee with a scent sensitivity was because of a pattern of bad behaviour, not a refusal to work where he thought he would be in danger, the Nova Scotia Labour Board has ruled.
Keith Gillis was an office service co-ordinator with the human resources unit of the Public Service Commission of Nova Scotia (PSC) in Halifax. He was essentially a personal assistant to the director of the human resources division and the job required “a high level of productivity and accuracy” with minimum supervision. The PSC made a point of noting that “tact, diplomacy and confidentiality are essential” as the position included handling of personnel files.
In 2010, Gillis developed sensitivities to scents in the air, which worsened over time.
In September 2010, Gillis requested authority from his supervisor, the director of human resources, to spend $100 from the office budget for staff prizes for a scheduled team day. The director couldn’t give him an answer because she was busy. She later told Gillis she would approve it, but Gillis said he had already called her own supervisor to get the authorization. A few days later, Gillis became loud and angry over decisions that had been made.
The HR director gave Gillis a disciplinary letter for these incidents, reminding him to be respectful and courteous to others in the workplace and not to undermine her authority by going over her head.
Over the next three years, Gillis experienced a number of reactions to scents worn by co-workers and members of the public who came to the office. His symptoms included watery eyes, dizziness and nausea, increased heart rate and adrenaline, throat constriction, and weakness in his legs. These would also sometimes lead to migraines, insomnia, anxiety, depression, and later loss of appetite. His depression increased the more he had to deal with his scent sensitivity.
Move to new location caused concern for employee
The PSC worked towards developing a scent-free policy to accommodate Gillis’ issues. However, in January 2012, the HR unit was advised it would be moving to another building in Halifax — the World Trade and Convention Centre (WTCC). Gillis felt the new location was unsafe for him and his “health and safety were not part of the decision-making process when a new location for our office was chosen.” He claimed his mental and physical issues increased due to the stress he felt over the impending move.
Gillis was concerned that because the WTCC was a public building and the office space there was smaller, scents would be more of a problem there.
In February 2012 Gillis was shown a proposed floor plan in the new office space. He asked where the storage space would be but was told he was being negative. He replied that he was being realistic. His supervisor met with him to discuss his behaviour and Gillis brought up concerns about another employee who had made serious allegations against him returning to the office. He said “when you walked by someone who made untrue allegations that you would want to go in and strangle them.” He denied making a threat, but told his supervisor and an HR consultant that it was “human nature to have, to express those feelings. I did not say I would act on them.”
Gillis was suspended for three days and told that when he returned to work, his “demeanor and actions will be professional, calmer, respectiful.” He was also told to avoid contact with the returning co-worker.
The PSC also learned about comments Gillis had made to another employee about using marijuana to treat migraines. The investigation eventually determined that Gillis had shown a lack of insight into the appropriateness of his discussions and the effect it had on co-workers. The PSC increased his suspension to five days.
The department moved to the WTCC in May 2012. Gillis said he experienced some attacks from his scent sensitivities, but he was able to remove himself from the area. He didn’t have to use the epiPens he carried with him, nor did he have to seek medical attention.
In January 2013, the PSC suspended Gillis for five days for aggressive behaviour towards a co-worker and was warned that “any future inappropriate behaviour will result in further discipline up to and including termination of employment.”
Employer took steps to accommodate
In March 2013, a mediation was held to try to resolve Gillis’ concerns about scents in the workplace. The PSC agreed to take several steps, including reconfiguring Gillis’ workspace to reduce his exposure to scents near the doorway, changing a rear fire exit so Gillis could use it to enter separately, provide materials on scent sensitivity to the joint occupational health and safety committee, and investigate signage and a scent-free policy in the workplace.
In August 2014, Gillis encountered another employee who was wearing strongly-scented body spray. When his eyes started to water, he left the office for a few hours and returned to work after most people had left.
The next day, Gillis didn’t come into work. The PSC asked him a few times over the next few days if he would return and he claimed he felt bullied into returning. He finally returned with the agreement that he would remain on the same floor while the rest of the office moved one floor up, until he felt comfortable moving up as well.
Gillis said the signs on the new floor indicating the scent-free policy were poorly placed, so the PSC allowed him to put up several more. Gillis was also concerned that some of the cleaning products used on the floor were not good for him, saying they “could possibly be fatal for me.”
Not all of the cleaning products Gillis listed could be removed, as there were no scent-free alternatives. In addition, the supervisor had observed Gillis using bleach before and knew he hadn’t been affected by the smell of certain epoxy products used in the renovations.
The PSC told Gillis he should start work on the new floor on Sept. 17, as it felt it had done what it could to accommodate his concerns — signs on the floor, a security door to the office restricting entrance, a video for employees about the scent-free policy, and a key for Gillis to the back fire door.
Gillis felt more could be done and didn’t come into work on Sept. 17, using a vacation day. On Sept. 24, he was placed on administrative leave pending an investigation into several incidents of insubordination.
Employee’s conduct too much for employer
The PSC investigated four incidents of insubordination that involved disobeying orders, going over the head of a supervisor, a disparaging comment about a co-worker, and other inappropriate comments. It determined that these incidents along with his prior discipline provided just cause for dismissal. Gillis was dismissed on Nov. 4.
Gillis filed a complaint, claiming the dismissal was discrimination because he had exercised his right to refuse unsafe work.
The board noted that the PSC had “long accepted that Mr. Gillis had a scent sensitivity.” It took several measures to accommodate him and he was able to leave the office anytime a scent affected him. Gillis was also allowed to stay home for a few days after the August 2014 incident.
However, while the PSC took measures to address Gillis’ concerns, Gillis “conducted himself in ways that violated other policies of the employer that were separate and independent of his issues and complaints regarding scent,” the board said. “All his disciplinary incidents were related to his treatment and conduct of other employees and managers.”
The board found PSC issued progressive discipline for Gillis’ misconduct and he had adequate warning of the consequences. Given the importance of respecting the chain of command and others, especially in the service industry, the board determined PSC dismissed Gillis for legitimate business reasons, not a refusal of unsafe work.
