Good faith not enough for accommodation

Employer had return-to-work plan but worker didn’t want to see co-workers who caused panic attacks

The Ontario Arbitration Board has given a bipolar Frito-Lay employee his job back after he was terminated for failing to follow through on a plan to return to work from short-term disability (STD) leave.

The worker, a millwright for Frito-Lay Canada, was hired on July 1, 2003, for the day shift at its Cambridge, Ont., plant. Though he served on the day shift, from 7 a.m. to 3 p.m. during his two-month probationary period, the company intended to employ him on the afternoon shift from 3 p.m. to 11 p.m. Company practice was that only employees with 20 years of seniority could secure a permanent day-shift position.

The employee had a history of panic attacks and depression dating back to his childhood. The panic attacks were usually triggered when he felt threatened and involved an increased heart rate, chest pressure, difficulty breathing and, according to his doctor, “a sense of impending death.” When this happened, the employee felt the need to get away from the cause immediately.

Once his probation was up in August 2003, the employee began working the afternoon shift. Soon after, there was an incident where a co-worker swore at him and called him names. The co-worker also referred to him as a “useless old man.” The employee told his supervisor about it and informed her of his condition.

In March 2004, the same co-worker cursed him again and made him feel nervous and uncomfortable. He reported this once again to his supervisor and said this kind of treatment affected his disability. The employee felt nothing was done after either incident.

In May 2004, a different co-worker, who had some previous hostile interaction with the employee, threatened him in the parking lot and he called the police. Though no charges were laid, the employee felt these two employees created a poisonous work environment for him on the afternoon shift, which aggravated his condition. Eventually, in August 2004, he went on medical leave with a doctor’s note and received STD benefits.

The employee was diagnosed with bipolar disorder and Frito-Lay agreed to a graduated return-to-work program for him. The company said he couldn’t perform his regular duties if he worked less than four hours a day, so he began the program on the day shift with the stipulation he would return to his afternoon shift duties when he was capable of his full-time duties. The employee responded with a doctor’s note saying he should stay on the day shift until a psychiatric assessment, partly because of the two co-workers who had caused problems on the afternoon shift.

When told the co-workers were no longer on the shift, the employee’s doctor approved a return to the afternoon shift on Dec. 20, 2004. However, when the employee started back on the shift, he found out they were still there. He continued to feel nervous and, on Jan. 12, 2005, he suffered a panic attack and went on STD again. His doctor wrote a letter to Frito-Lay indicating the employee was “completely disabled.”

Frito-Lay learned that while on STD, the employee had been making deliveries for Pizza Pizza without its knowledge and suspended him. However, he claimed he was merely riding with his wife who delivered pizzas and it was part of his treatment to calm him. His doctor supported this claim and the company agreed to resume his STD benefits but warned him to be completely honest and co-operate fully in the future.

The employee and his doctor agreed to another return-to-work plan starting April 25, 2005, on the day shift and there were no problems. He was to start working a split shift on May 9 but said he felt apprehension about working with the afternoon shift employees and said he didn’t want to work the latter part of the split shift. His doctor supplied a letter indicating a return to the afternoon shift would cause a setback. Frito-Lay didn’t accept the letter as objective medical evidence and told the employee to stick with the agreed return-to-work plan. It said if he left work before the afternoon shift started, he wouldn’t be paid and would be subject to discipline up to discharge.

The employee didn’t show up to work on May 9. The company sent him several letters telling him he had to report to work according to the plan or else provide sufficient medical documentation. When he insisted he couldn’t work the afternoon shift, Frito-Lay terminated him on Sept. 2, 2005.

The board accepted Frito-Lay did work with the employee and his doctor in accommodating his disability by negotiating a graduated return-to-work plan each time he went on STD. It also accommodated his issues with the afternoon shift by beginning his return on the day shift, despite the fact junior employees don’t normally work it. However, the board found Frito-Lay should have sought more information if it felt it needed more documentation to justify an avoidance of the afternoon shift. When the company didn’t do so and simply rejected the letter as not objective medical evidence, it didn’t fully exhaust its duty to accommodate.

“There is no question that the company made sincere efforts to accommodate (the employee) and it was continually frustrated in its attempts to implement the return-to-work plans by (the employee’s) failure to make the transition to the afternoon shift,” the board said. However, it found the employee’s “ability to function in the work environment with his disability was, in his mind, directly related to the shift he worked on.”

The board found the employee’s ongoing treatment, his willingness to work with Frito-Lay on coming back to work and other shift work possibilities left more room for accommodation. It reinstated his employment, contingent on a psychiatric assessment, and ordered Frito-Lay, the employee and his doctors to work out a return-to-work plan based on the assessment. The board noted Frito-Lay did act in good faith in trying to work out a plan with the employee and thus did not award back pay or other damages, except for expenses that would have been covered under Frito-Lay’s medical plan.

“I cannot accept that, given (the employee’s) condition, ongoing accommodation would constitute undue hardship,” the board said. “The parties have not reached the point where it can be said that (the employee’s) condition will never improve enough for him to be reintegrated into the workforce.”

For more information see:

Frito-Lay Canada v. U.S.W.A., Local 461, 2007 CarswellOnt 7910 (Ont. Arb. Bd.).

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