In Durham (Regional Municipality) (2011), 213 L.A.C. (4th) 205 (Bendel), the employee had sustained a brain injury some eight years prior to his termination. He was terminated as a result of several incidents of boorish, egregious and vulgar sexual harassment. The union attributed his misconduct to his earlier brain injury.
Arbitrator Bendel commented that “there was no serious disagreement between counsel as to the approach to be followed by an arbitrator when a grievor seeks to avoid discipline by alleging that he suffered from some illness or condition at the material time.” He adopted the criteria set forth by arbitrator Ish in Canada Safeway Ltd. (1999), 82 L.A.C. (4th) 1 (Ish) [set forth at page 728 of the Manual]. He characterized the dispute as relating to the second and third elements discussed by arbitrator Ish, “namely whether the [employee’s misconduct [was] sufficiently linked to his cognitive disability and whether the disability effectively displaced his personal responsibility.”
A Clinical Neuropsychologist and a Speech-Language Pathologist, both called by the union, attributed the employee’s actions to the acquired brain injury. That view was challenged by the Clinical Neuropsychologist who testified on behalf of the employer. She drew a distinction between “socially inappropriate behaviour” and “sexually inappropriate behaviour.” Socially inappropriate behaviour was common with an acquired brain injury, but sexually inappropriate behaviour was not. In the case of sexually inappropriate behaviour that might result from such an injury, it would be generalized. Here however the offensive sexual behaviour had only been targeted at two people. It was this witness’s evidence that “targeted” behaviour was inconsistent with an acquired brain injury.
The employer’s expert also testified that the employee’s behaviour was intentional, in that he had control over it. While the employee’s neuro-cognitive and neuro-behavioural deficits might explain some of his socially inappropriate behaviour, it could not account for his sexually inappropriate behaviour.
In preferring the testimony of the employer’s expert, the arbitrator commented that she was “by far the most experienced of the three witnesses. But more importantly, her opinion on a crucial point was confirmed by [the employer’s expert].” Both accepted that if the aberrant conduct was attributable to a brain injury, it would not suddenly surface eight years after the accident that caused the brain injury, and further, that it was highly unlikely that such behaviour would have been directed only to a few people. On this latter point, the employee had testified that he had not made sexual comments to any employee other than the few who had testified.
The termination was upheld.