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Queen's University
 

University of  Western Ontaro v. University of Western Ontario Faculty Assn (Disability Grievance) 2008 OLAA No 192.

What is the difference between strong aversion to work and a mental disability triggered at/by work?

Facts:

 The grievor was a lab technician at the University of Western Ontario with a service record of seven years. In January 2006, he was assigned to a cancer research project which conducted experiments on live rats. His duties included the anaesthetizing, vivisection, dissection and euthanasia of rats. This was his first experience doing this kind of work with live animals. While he had no conscience moral issues with the work he was doing, he began to develop psychological and physical symptoms when he perceived signs of pain and suffering in the anaesthetised rats.  He began to obsessively associate images of the suffering rats with images of his young daughter.  His supervisor, with whom he discussed his stress, anxiety, nausea and insomnia, assured him that these symptoms would pass with time. This was not true for him.   After a month, he was forced to go on sick leave.  His doctor provided a certificate notifying the university that “due to medical reasons, he is unable to continue the work he is currently doing”.  He returned to work in the spring of 2006 after taking a course of anti-anxiety medication and receiving 15 weeks of Short Term Sick Leave Benefits. 

In June 2006, the employer sent him correspondence indicating that the University now considered that his 15-week absence was due not to disability but to an unconscious aversion of his duties. A grievance was filed in which the Union claimed that the University had failed to accommodate the Grievor’s medical limitations.

At the preliminary hearing, the Union provided medical documentation stating such things as follows:

Functional Abilities Form

Reason for absence: Anxiety related to workplace situation

Rehabilitation/Treatment Required: Yes

Treatment Plan: Could not continue working at previous job, better since he has discontinued job. Stress related to death of animals in experimentation

Complete Recovery Expected: Yes

Estimated Return to Work Date: Needs new work

Comments: In previous work could not mentally handle death of many animals in experiments

Note

He had stress anxiety nausea insomnia related to dissection, death and research on rats. He medically had to leave his position. His medical symptoms improved after leaving the position

Note

He was suffering a psychological impairment while working with animal experimentation. He was suffering extreme anxiety to the point of nausea and insomnia. He could not function at work and voluntarily left his job. He did not want psychological counselling as he was okay when he was not working. He was seen in the office Feb 9, and March 3 and a work related note was given. Later when his job did not change, he vol8ntarily left work as his psychological anxiety prevent him from functioning with the animal experimental, /He was also seen August 4 and Sept 5, 20006. The nausea and insomnia were related to anxiety related to the job situation and he could not function. When not working he was okay. We could work but not in a job where there was animal experimentation.

Arguments

 The College argues that there is a difference between disability, which prevents an employee from doing his work, and stress triggered by having to do work to which he objects.   It maintains that the grievor had an unconscious aversion to killing animals, an aversion which manifested itself as a set of symptoms. It referred to a set of analogous cases in which disgruntled employees unsuccessfully claimed discrimination on the basis disability (Beauregard 2004 and Rogers Sugar 2001)

The Union argues that if the College believed that the grievor did not suffer from a disability, it should have exercised its right to an independent medical exam to prove its point.

Issue

Did the grievor suffer from a disability?  

Decision

Yes

Reasoning:

The arbitrator pointed to the Supreme Court’s definition of disability in the City of Montreal Case [2000]   in which the court stated that disability goes beyond the biomedical realm to include a socio-political dimension. (26)  It also points to City of Mississauga [2005] where the arbitrator outlined three considerations for determining whether an illness amounts to disability (whether the condition was permanent or temporary, whether it was an ailment suffered by most people from time to time, and the extent to which the condition […] interfered with the person’s ability to participate fully in society.” On the other hand, the arbitrator clarified that not all medical conditions amount to disability, citing two cases:

  1. The Beauregard case (2004) in which the employee’s symptoms were caused by his strong aversion to work but did not amount to a disability and;
  2. The Rogers Sugar case [2001]  In which an employee’s acute stress disorder,  triggered by her employer’s rodent control program, was not found to be a disability which caused her to leave work.

The arbitrator said “the facts of this case go beyond a strong aversion to assigned duties” (31). It was not the aversion that prevented the grievor from working but rather a medical condition that he suffered as a result of having to carry out his duties. The Arbitrator said that while job duties caused the Grievor’s stress, this does not disentitle him to accommodation. Furthermore, stress that results in an inability to work is a medically accepted form of disability. Finally, since the Employer failed to question the doctor’s documentation or to conduct  its own independent medical assessment, the arbitrator had no other choice but to accept the medical evidence presented at the preliminary hearing.  

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000