Safety trumps accommodation for worker with mental illness

Reinstatement not possible with continued violence: Arbitrator

An Ontario arbitrator has found a frequently absent employee should not be reinstated to active duty, but should be reinstated for the purposes of applying for long-term disability (LTD) benefits.

Agropur Division Natrel, a manufacturer of dairy products based in Longueuil, Que., had a 38-year-old labourer at its Toronto plant who had been diagnosed with “severe mental health conditions.” The employee suffered from post-traumatic stress disorder, impulse control disorder, attention deficit hyperactivity disorder and personality disorders.

The employee was hired in 2000. In 2009 he began having serious difficulty and sought treatment for his mental health issues. He went on short-term disability benefits and spent two months at a health centre in a program for traumatic stress recovery. He was released in June 2010 with the expectation he could return to work with accommodations in August.

Agropur began discussions with the union on how to accommodate the employee, but his behaviour became erratic and he experienced another crisis, including an incident in early August where he tried to enter the plant with his dog.

In mid-August, he tried again and, when stopped by security, he repeated the names and phone numbers of his manager and an HR person. Agropur considered this threatening behaviour and increased security at the plant and for the manager and HR person.

Agropur determined it could not accommodate the employee’s disability because he posed a safety risk and his potentially violent and erratic behaviour was not conducive to its environment.

Agropur felt it had made reasonable efforts to accommodate the employee but didn’t see how it could work. The company terminated his employment with full termination and severance pay on Oct. 4, 2010. The company encouraged him to apply for LTD, but he did not. Following the termination, the employee was charged with multiple criminal offences for violent behaviour.

The union challenged the termination, pointing out the employee’s condition had stabilized through ongoing care from a doctor and psychiatrist and it said the termination decision was hasty. The employee had also enrolled in an education program for people with mental health issues to assess their readiness for full-time work and completed the Canadian Mental Health Association’s community volunteer program. The termination constituted discrimination based on disability, said the union.

The union also claimed the medical evidence — including assessments from doctors — indicated the employee’s mental health issues were controllable with treatment as long as he stayed away from substance abuse, especially considering he was able to do his job for 10 years before his most recent crisis. It demanded reinstatement following a determination of whether accommodation arrangements could be made. The union also said if it wasn’t possible to reintegrate the employee, he should be reinstated so he could receive coverage under Agropur’s LTD plan.

The arbitrator found there were indications the employee had made progress in his recovery and his efforts showed he was committed to dealing with his issues.

However, the medical reports indicated he still suffered from outbreaks of violent and threatening behaviour and there was no indication this risk would be eliminated.

The workplace was also fast-paced and stressful, found the arbitrator, which could trigger the employee’s condition, even if it was only episodic. In addition, the employee’s unexpected appearances at the plant in August demonstrated this was an ongoing concern that could threaten the safety of other employees.

“An individual who suffers from ‘occasional, brief psychotic outbreaks’ cannot be reinstated to employment,” said the arbitrator. “The risks to the workplace, and the men and women in it, far outweigh the benefits to an individual, including a person, like the (employee), who is, self-evidently, suffering from a disability that attracts the attention and protection of the (human rights) code.”

The arbitrator determined Agropur had investigated accommodation to the point of undue hardship and was unable to bring the employee back into the workplace due to safety concerns. Though the employee didn’t take advantage of an opportunity to apply for LTD at his termination, Agropur was ordered to reinstate him solely so he could apply for LTD. The reinstatement was to be for three months and was without compensation.

Jeffrey Smith is the editor of Canadian Employment Law Today.

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