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Expanded Case Details

Highland Community Residential Services (2012), 219 L.A.C. (4th) 52 (Richardson)

In Highland Community Residential Services (2012), 219 L.A.C. (4th) 52 (Richardson, the employee testified that the stress that he was experiencing was so strong that he worried that he might act out against a member of management. His family physician recommended that he attend at the hospital emergency department, where he was ultimately admitted, on a voluntary basis, into the hospital’s mental health wing. As he was about to be discharged, the psychiatrist reviewing his file decided to commit him involuntary and to advise the employer and the police of the alleged threats.

The employee sought subsequent counseling and was subsequently cleared by his psychiatrist to return to work. The employer insisted on an Independent Medical Examination by one of two specified psychiatrists. The resulting report opined that the employee “was currently stable psychiatrically speaking and was capable of returning to work and performing the duties of his job.” It commented that “the grievor’s presentation best fit a diagnosis of intermittent explosive disorder, which [it] noted parenthetically, “has some degree of controversy in psychiatry”. On the issue of discipline, the report recommended that the employee “should be and could be treated no differently ‘than any other employee as a result of … his intermittent explosive disorder.’”

The employer nevertheless proceeded to terminate the employee. Chief among its stated consideration was fear expressed by fellow employees, the potential for future risk of harm, and the employee’s failure to address continuing concerns regarding his identified performance deficiencies.

The arbitrator concluded that discipline was merited in respect of some of the protocol issues, and that the threat that was made also merited discipline. Given that this was not a criminal case, it did not make any difference that the employee “said what he said in the context of a therapeutic relationship with someone he thought was bound by strict rules of confidentiality.”

In the arbitrator’s view, what made a difference was that what the psychiatrist “perceived as a threat was made precisely because the grievor recognized that (a) the fantasies were inappropriate and (b) his self management techniques were reaching the limits of their effectiveness and (c) he needed medical help in dealing with them. He had no immediate intention to act on these fantasies. He was seeking help in order to avoid acting on them. It was an “elicited” threat. That is, it was expressed not as an intention to commit an act, but rather as an explanation of his desire and need for help. It was not … a stated intention to commit an immediate or future act of violence.” While the arbitrator stated that this was a “fine” distinction, it was nevertheless one that should be considered in determining the appropriate penalty.

The arbitrator stated that he was not satisfied that the grievor was disabled and therefore protected  and entitled to some accommodation pursuant to human rights legislation.

It is true that there was passing reference in the medical notes and records filed at the hearing to the possibility that the grievor suffered from bipolar disorder. It is also true that in cases involving threats stemming from some form of mental disorder (such as manic depression or schizophrenia), the employee may be reinstated … However, the onus was on the union to establish the existence of a “mental disability and that it was disclosed to the employer … In my opinion, references to the possibility of a bipolar disorder do not satisfy that onus. Moreover, and more importantly, the opinion of [the Independent Medical Expert] – which was relied on by both parties … was that he was not bipolar. In [the Expert’s] opinion, if the grievor suffered from anything, it was “intermittent explosive disorder,” a diagnosis that [the Expert] described as having “some degree of controversy in psychiatry.” [The Expert] was also emphatic that notwithstanding that diagnosis he “would not expect that … [the grievor] should be dealt with any differently than any other employee as a result of this [diagnosis]: … Accordingly, even if “intermittent explosive disorder” constituted a mental condition (and I make no finding that it is), it was not a “disability” – it was not something that needed to be accommodated. The grievor’s actions are thus to be evaluated in the same way that they would be for “any other employee.”

The arbitrator rejected the suggestion that the employer should have designed programs that would address the employee’s needs:

… it is in my view unrealistic to suggest that it was the Employer’s responsibility to come up with suggested therapies or programs to assist the grievor. Surely that was up to the grievor and his doctors or therapists … They, and not the Employer, would have the detailed information necessary to determine what best suited his needs …

Balanced against the factors that weighed in the grievor’s favour was “his unwillingness to confront the fact that the techniques he has used to date to manage his anger no longer seem entirely adequate.” The grievor had been enrolled in cognitive behaviour therapy (“CBT”) but subsequently elected to discontinue such therapy because it could trigger emotions that could “turn a good day into a bad one.” The arbitrator concluded that the employee had “not really accepted the demonstrated need to change his behaviour.”

The arbitrator characterized the matter as being a “close case.” He issued a conditional reinstatement in which he returned the grievor to work after a period of one year’s absence, without back pay but without loss of seniority. He stated that in framing the conditions (set forth at pages 103-104 of the reported decision) that he was influenced by and had drawn upon the approach of arbitrator Picher in Canada Post Corp. [2010] C.L.A.D. No. 219.

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