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.
“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.
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
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termination was rescinded by the arbitrator on the basis that the employer had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
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.
The blog sets out a variety of materials relating to the law to be used for educational and non-commercial purposes only; the author(s) of the blog do not intend the blog to be a source of legal advice. Please retain and seek the advice of a lawyer and use your own good judgement before choosing to act on any information included in the blog. If you choose to rely on the materials, you do so entirely at your own risk.