June 4, 2012
Ian J. Smith

Must an employer accommodate a worker at an industrial plant who threatens to kill his supervisor? How about a psychiatric hospital nurse who kicks a disruptive patient out of a van and leaves them at the side of the road? Or an employee at a bottling plant who throws a phone and punches a co-worker?

In each of the three situations, the employer thought the misconduct was sufficiently serious that termination was appropriate. The unions for each employee didn’t agree. They grieved and in each case an arbitrator ruled that termination was excessive.

Why? Stress.

“Stress?!” you say. “My colleagues are over-worked and frazzled. My manager is a walking, talking embodiment of stress. My dog acts stressed when the neighbour’s six-year-old shows up. We’re all stressed. But that doesn’t mean that we get to take a bite out of someone, does it?”

Well, no, garden variety stress does not provide us with a free pass to misbehave. But when an employee is found to be suffering from a medically diagnosed condition involving stress, anxiety or depression, misconduct that flows from that condition will more than likely be viewed as non-culpable in nature and accommodation of the employee warranted.

Consider the patient abuse case (British Columbia Nurses’ Union v British Columbia (Riverview Hospital) 2011 CanLII 85132 (Burke)). While the nurse’s actions were considered reckless, medical evidence showed the nurse’s cognitive abilities were impaired by post-traumatic stress disorder that he was suffering from as a result of his military service in Afghanistan. The nurse’s behaviour was seen to be non-culpable and a disciplinary approach unjustified.

How about the employee who threatened the life of his supervisor (Wescast Industries Inc. v. CAW-Canada, Local 4207 (2011), 205 L.A.C. (4th) 425 (Levinson))? The arbitrator determined the threat was a “maladaptive stress-related response” and a product of the employee’s deficient coping abilities. The employee was seen to have rehabilitative potential and his reinstatement occurred under certain conditions.

OK, but what about the assault by phone and fist? In that case (Coca-Cola Bottling Company v. CAW-Canada, Local 973 (2009), 190 L.A.C. (4th) 45 (Chauvin)), the termination was rescinded by the arbitrator on the basis that the employer had failed to take into account that the employee was suffering from anxiety and depression. Consideration of whether he could be accommodated needed to occur before termination.

In each case it was accepted that there was an illness or disorder of some sort that the employee was suffering from at the time that had a causal link to the misconduct in question. In each case, the risk of recurrence was deemed to be minimal and the prospects for rehabilitation decent.

As discussed by Cliff Hart in his May 22 blog post, these cases are another reminder for employers that before rushing to discipline or terminate, a thorough inquiry of the employee’s misconduct and motivations is essential. In making that inquiry, the best questions for the employer to ask the employee may be: “Can you help us to understand why this happened? What’s going on for you right now?” While the question generally doesn’t work with a stressed-out dog, it often generates very helpful information in dealing with a stressed-out employee.