Human Rights and Equity Office

Human Rights and Equity Office
Human Rights and Equity Office

Meeting 3: Accessibility and Accommodation

Online Training Module in Accessible Customer Service

In January 2008, the Ontario government enacted the customer service regulation under the Accessibility for Ontarians with Disabilities Act (AODA), 2005. To meet regulatory compliance, the University must train everyone who acts on its behalf in accessible customer service. This training requirement applies to faculty, staff, managers, directors, department and unit heads, senior administrators and student leaders. Over 200 department and unit heads, managers and senior administrators have participated in training sessions since the summer of 2009 with further session planned for the 2010 year. Now the University is preparing to launch an online course in accessible customer service for faculty and staff. The Vice Prinicipal, Human Resources will be sending an email to faculty and staff with details about the training and requesting that everyone complete the online course on or before February 15, 2010. To begin the training, click here.

Recent Cases in Accommodation (Employment)

Four themes characterize recent decisions made by Arbitrators, Provincial Courts and the Supreme Court of Canada:

Supreme Court is clarifying legal standards

Arbitrators and Provincial Courts are misinterpreting legal standards and wrongfully awarding punitive damages. The Supreme Court of Canada has asked itself three questions:

In the case of chronically absent employees, what are the limits of undue hardship? (Hydro Quebec) Before applying a termination clause, what three conditions must an employee meet? (McGill University Hospital) Can civil courts award punitive damages for discrimination? (Honda v Keays)

Employers are failing to accommodate

Employers are being found responsible for discrimination on the basis of disability. They are failing to take appropriate steps to assess disabilities and/or are making poor decisions concerning accommodation plans and the limits of undue hardship.

Employer terminates chronically absent employee despite positive prognosis for full recovery (Hayes v Yukon College and United Brotherhood) Employer terminates chronically absent employee without notification (Senyk v WFG Agency Network) Employer fails to ask for medical assessment, blames inaction on third parties (Kerr v Boehringer) Employer makes an unfair assessment (ADM Milling Co) Employer fires employee based on false stereotypes (ADGA group) Employer does not believe the employee, drags its heels (Toronto Police Association)

Employee Mistakes

Employees are failing to establish prima facie discrimination due to lack of medical documentation. They are also failing to cooperate with the employer in its attempts to accommodate them.

Employees fail to distinguish between differential treatment and unfair treatment (Hill v University of Waterloo) Employee fails to provide sufficient evidence of disability (Unger v B.C. College of Optics) Employee fails to provide updated medical information to employer (Lenihan v British Columbia) Employee fails to accept accommodation due to lifestyle choices (CB v Emergency) Employee breaches last-chance agreement (M.F. v Capilano) Employee unwilling to try the accommodation proposed by the employer (J.B. v Fraser Milner Casgrain)

Employers are failing to use the hybrid test

The misconduct of employees with disabilities often contains culpable and non-culpable aspects. The hybrid approach allows employers to assess both aspects appropriately.

What mitigating factors should be taken into consideration when determining disciplinary action? (Gooding) Does lying about a cocaine relapse constitute culpable conduct worthy of termination? (Brewery, Winery and Distillery Workers) Under what circumstances does buying cocaine during work hours constitute non-culpable conduct? (Direct Energy and Communication) What steps should an employer take to assess the misconduct of an employee with a mental disability? (Manitoba Government) Does the compulsion to gamble turn theft into an act of non-culpable misconduct? (Communication, Energy and Paperworkers)

Key differences between accommodation in employment and in Academia

Employment is based on a contract between employer and employee in which the former agrees to pay the latter in return for work. Education is based on a contract between a service provider and a customer in which the former agrees to provide the latter with an education in return for money. In both the employment world and the education world, employees and students must meet occupational or academic standards in order to remain employed or to receive the education. If an employee can not meet an occupational requirement due to disability, the employer has a duty to modify the job in order to accommodate the employee, unless it can prove that to do so would constitute undue hardship. In Academia, we do not have to change academic standards in order to accommodate students with disabilities. Students must still meet academic standards, but the university must provide them the opportunity or opportunities to achieve those standards. Examples include: extended time limits for completion of a program, extended exam periods, lightened course load, flexibility re. supervisors, and related funding issues. Employers have a duty to accommodate employees with addictions to the point of undue hardship, even when those employees become involve in non-culpable misconduct In residences, we are entitled to ask students with a drug problem to take a leave of absence in order to seek rehabilitation. Similarly, we do not have to accommodate suicidal or threatening behaviors amongst students. We require students to withdraw from university and to provide a letter from a psychiatrist before they can come back to the university. Employers have a responsibility to provide medical assessments and to request medical documentation as part of their duty to accommodate employees with mental disabilities. In Academia, it is up to the students to get their own medical assessments and to provide their own medical documentation.

Recent Cases in Accommodation in University Setting

University wrongfully terminates medical resident with a drug addiction (Das) College fails to accommodate a dentistry student with a physical disability who could not meet occupational standard at her placement (Hickey) Students who fail to provide medical documentation (Harris)

Cases

Hydro-Quebec

In Hydro-Quebec v Syndicat des employe-e-s de techniques professionnelles et de bureau d'Hydro-Quebec, section locale 2000(2008), 294 D.L.R. (4th) 407, Hydro-Quebec dismissed a chronically ill employee with a mental disorder who had missed 960 days of work over 7.5 years .   Over the years, the employer had accommodated the employee by adjusting her work conditions and had treated her with respect, dignity and kindness.  However, when faced with new medical evidence indicating that the employee "would not be able to work on a regular and continuous basis without continuing to have an absenteeism problem as in the past", the employer dismissed the employee. The Court of Appeal overturned the dismissal, ruling that the employer had failed to prove that it would be impossible to accommodate the employee.  The Supreme Court of Canada overturned the Court of Appeal's decision, ruling that it had misinterpreted the legal limits of undue hardship; employers do not have to prove that it would be impossible to accommodate an employee; they have to prove that it would be impossible to accommodate an employee to the point of undue hardship.

Moreover, the Court outlined three conditions that must be met in order to justify the discharge of any chronically absent employee with a disability:  

  1. The employer must establish that the employee has a history of excessive innocent absence
  2. The employer must prove that the employee's attendance record will not improve in the reasonably foreseeable future
  3. The employer must show concrete proof that is has discharged its duty to accommodate to the point of undue hardship
McGill University

In McGill University Health Centre (Montreal General Hospital) v Syndicat des employe-e-s de l'Hopital general de Montreal, Supreme Court of Canada, 2007, McGill applied a 3-year termination clause to dismiss a secretary who had been absent for over three years, who had been accommodated in various ways by the employer during that time, and who had no reasonable prospects of recovery in the future. The Union grieved the termination, arguing that the employer had failed to accommodate the employee. It maintained that the employer's assessment of undue hardship should begin after the negotiated three-year period.

The Majority of the Supreme Court of Canada ruled in favor of the employer. They disagreed with the Union, stating that the assessment of undue hardship should include the negotiated three-year period of sick leave. The ruled that termination clauses should be considered to be measures of accommodation as they allowed chronically absent employees with disabilities to remain employed (for a limited amount of time) even though they were not working in exchange for remuneration. However, the Majority warned that it would be discriminatory to apply such general labour standards arbitrarily to all employees with disabilities without first conducting individual assessments and then making a determination of undue hardship.

Honda vs Keays

In Honda Canada Inc. c Keays , [2008], 2 S.C.R. 362. 2--8 SCC 39, the Supreme Court of Canada overturned a decision that had employers sitting nervously at the edge of their seats. An employee of Honda Canada had been awarded, by a Court of Appeal, $100, 000 in punitive damages for discrimination - and this was a reduced penalty, down from half a million dollars ordered by a lower court. The Court of Appeal had found that the employer had discriminated against the employee with chronic fatigue syndrome by monitoring his absences in a differential way (making him get a doctor's note for each and every absence) and by insisting he submit to a medical assessment by a company medical representative he did not trust (the doctor was reputed to deal with workers with chronic fatigue syndrome by sending them back to work). The Supreme Court determined that there had been no discrimination in this case; employers have the right to monitor absences and perform medical assessments. Even had there been discrimination, punitive damages would have been inappropriate. Punitive damages are incompatible with human rights legislation which is remedial in nature. It's objective is to restore the complainant to the place where he would have been but for the discrimination, not to punish the discriminator.

Hayes v Yukon College

In Hayes v Yukon College, CHRR Doc. 08-1142 Y.T. Bd.Adj.), Yukon College dismissed an employee who had gone on long-term disability shortly after being hired as a computer technician. During his 2 year absence, the College hired a non-permanent employee to replace the permanent one. After two years, the temporary employee was threatening to quit if he was not made permanent. The permanent employee had just received a liver transplant, and was still in Post-Operative care, when the College contacted him, asking whether or not he could return to work. In and out of consciousness, the employee was unable to respond. The College then dismissed the employee, by applying two established policies: a two-year review policy used by its disability insurer and a two-year Collective Agreement clause which required the employer to make temporary employees permanent when they had worked in a temporary position for two years. A Board of Arbitration found that the College had failed to determine that he would not be able to return to work in the reasonably foreseeable future (in fact, according to the reports it had, the employee would have been able to return within 6-12 months) and it had arbitrarily applied time-sensitive policies without conducting an individual assessment. The College was ordered to reinstate the employee and to institute a policy regarding the discriminatory effects of dismissing employees with disabilities.

United Brotherhood

In this case, an employee of 18 years developed kidney failure. After 2 years absence, during which his employment was protected by a 2-year termination clause, he learned that he required a kidney transplant. When he informed his employer that he required up to another 5 years off while waiting for a kidney donor, the employer applied the termination clause. The Union filed a grievance and the grievor found a live donor who agreed to donate one of his kidney's within a year. His medical specialist stated that the grievor had a good chance of recovering and would likely be and returning to work soon after the operation. The employer refused to reinstate the grievor, indicating that it would be impossible to hold the employee's position for yet another year without incurring undue hardship.

The Arbitrator allowed the grievance, holding that the employer had discriminated against the employee when it automatically invoked the termination clause without taking into consideration the employee's positive prospects for full recovery. It had also failed to prove, in a concrete manner, that maintaining the job another 12 months while waiting for the kidney transplant would lead to "a level of pervasive, irresolvable financial distress and corporate insecurity".

Senyk v WFG Agency Network (2008)

Ms Senyk worked for WFG Agency Network for 37 years selling insurance. She became ill and went on long-term disability. The contract allowed for 2 years LTD. At the end of the two years, she received an email terminating her employment, which caused her great mental anguish. The employee filed a human rights case with the BC Tribunal arguing that the employer had failed to accommodate her. The Tribunal agreed with the employee. It determined that the employer had failed to discharge its duty to accommodate by...

  • It failed to put the employee on notice it was considering terminating her employment, or its reasons for doing so, and it did not provide her with an opportunity to provide further information
  • It failed to treat a vulnerable employee with care or dignity when it terminated her by email, a choice which had severe negative repercussions on her mental health
  • It failed to prove undue hardship. In fact, the evidence indicated that there was no operational or financial need to terminate her.

The Tribunal ordered the employer to pay for legal costs and $35,000 in compensation for injury to dignity.

Kerr v. Boehringer

In Kerr v Boehringer Ingelheim (Canada) Ltd. B.C. Human Rights Tribunal (2009), an employee with a visual disability was awarded $30,000 in damages when her employer was found responsible for discrimination. The employee, who had a visual disability, had been on LTD but wanted to return to work. She engaged the CNIB and the insurance company in a rehabilitation process and asked the employer to create a "return-to-work" plan for her. The employer dragged its heels coming up with a back-to-work program and before long the employee found herself with neither salary nor LTD benefits. The employer's excuse? It did not have enough medical information to act on and besides, it was relying on the third parties (the CNIB and the LTD insurer) to come up with an accommodation plan. The Tribunal ruled that is was up to the employer to ask for up-to-date medical information and to come up with its own accommodation plan. Although outside parties like the insurance company and the CNIB can play a role in the accommodation process, "the primary responsibility lies with the employer to find and propose a solution that would accommodate [the employee]."

ADM Milling Co (2008)

In ADM Milling Co. v United Food and Commerical Workers International Union, Local 175 [2008] O.L.A.A. No. 677, the grievor had a physical disability preventing him from lifting certain objects in certain ways. He asked for accommodation in the form of rebundling - having other employees step in, periodically, to perform lifting tasks that were beyond his ability.

The employer dismissed the worker after doing an assessment that involved neither the worker nor the union. It found that a rebundling of duties would cause unsafe disruption in the workplace and would constitute undue financial burden.

The Arbitrator ruled that the employer's assessment was unfair; it failed to involve the union and the employee; it failed to order an independent medical exam; it failed to assess whether the employee could do other jobs (with or without modification) and it refused to cooperate with the WSIB. Moreover, it failed to prove undue hardship; cross-over of duties was written in the CA, his co-workers were more than willing to step in and there was no evidence of increased safety risk or undue financial burden.

ADGA Group

In P.L. v A.D.G.A. Group Consultants Inc Ontario, Ontario Superior Court (Divisional Court) [2008] O.J. No. 3076 (QL), the Ontario Superior Court reminded employers that the duty to accommodate includes two steps:

  1. a process of inquiry (the procedural aspect of the duty to accommodate) and
  2. a finding (the substantive aspect of the duty to accommodate). 

In this case, the employer made a finding before engaging in a fact-finding process.  It discharged an employee with bipolar disorder immediately after he started to exhibit symptoms of mania in the workplace. The employer had heard that mania was a dangerous disorder and felt that safety at the workplace was compromised.  

The employer was ordered to pay $80,000 in damages. The Court found that it had not taken the time to gather information about the disability, but rather had reacted out of fears generated by false stereotypes.

Toronto Police Association

In Toronto Police Association v Toronto Police Service, Ontario Grievance Arbitration (2008) O.L.A.A. No. 226 (QL), an arbitrator stated that every employer has the right to be skeptical about requests for accommodation.  This does not, however, give it permission to drag its heels when discharging its duty to accommodate. In this case, the Toronto Police Service did not believe one of its officers who claimed to have developed a rare hearing disorder requiring accommodation. Memos revealed the opinion that he was simply "a very lazy individual who tries to avoid doing work".  Although the employer did, eventually, accommodate the employee, it took an excessive amount of time (230 months) getting around to it. The Arbitrator said: "Unfortunately, this scenario is not unusual for rare forms of disability that are difficult to verify objectively. Through a combination of unfamiliarity with the diagnosis, skepticism about the legitimacy of the disability, there was foot dragging and even resistance on the employer's part -  moving the grievor's file forward to find suitable accommodation".

Hill v University of Waterloo

Mr. Hill was employed as a plumber at the University of Waterloo.  In 2001, Hill began to experience stress due to the breakdown of his marriage.  He alleged that at this time, the employer and the union began to discriminate against him.  The employer denied him a promotion, transferred him to another area on campus, demoted him from the position of lead hand, questioned his doctor's note for sick leave on an intermittent basis and accused him of falsifying his time sheet. The union refused to pursue his grievance against the employer, claiming he did not have a case.    

At Tribunal, Mr. Hill was unable to establish a prima facie case of discrimination, which would have required him to prove...

  1.  that he had a disability,
  2. that he suffered adverse treatment and that
  3. his disability was a factor in the adverse treatment. 

The Human Rights Tribunal dismissed the complaint for two reasons:

1)  The complainant failed to prove that he had suffered adverse treatment based on a disability.  Hill's own witnesses testified that the employer treated them all poorly, by consistently challenging and disregarding workplace policies and practices.  In light of this evidence, it was clear that the employer was not discriminating against Hill on the basis of disability.  In other words, Hill did not prove prima facie discrimination.

2) The complainant failed to prove that the employer discriminated against him by questioning his medical note. First of all, the note asked the employer to allow the employee to be absent from work intermittently, over a period of 8 weeks,  without having to get a fresh medical note for each absence. This was against the University's express policy regarding medical notes .  Secondly, the employer had the right to question the medical note because the term "intermittent" was too vague to act upon

Unger v BC College of Optics

Mr. Unger was an assistant instructor at the BC College of Optics. He assisted his supervisor in setting up the classroom, explaining equipment and marking exams.  When it was discovered that Mr. Unger was giving extra marks to a particular student, his employment was terminated.

He filed a complaint with the BC Human Rights Tribunal, alleging that he was fired based on his disability -  memory loss caused by depression caused by cancer treatments.  Although his supervisor knew that Mr Unger had been treated for cancer, she claimed to be unaware that Mr. Unger had a disability requiring accommodation.  Mr. Unger had been her student before becoming her employee.  He had received top marks in the course and she was astonished that someone who performed so well academically could be suffering from memory loss.  Moreover, she claimed never to have received any medical documentation about Mr. Unger's alleged memory loss/depression.  

At Tribunal, Mr. Unger was unable to establish a prima facie case of discrimination, which would have required him to prove...

  1.  that he had a disability,
  2. that he suffered adverse treatment and that
  3. his disability was a factor in the adverse treatment. 

Unger was unable to prove that he had a disability.  In all, he presented 4 bona fide medical documents to the Tribunal; a letter from a psychiatrist, two chest x-ray reports and one hearing test report). Only the letter from the psychiatrist referred to depression, but it explicitly denied that Mr. Unger suffered memory loss. Even if the Tribunal accepted that this letter proved that Mr. Unger suffered from a mental disorder, it did not prove that this mental disorder was a disability requiring accommodation in the workplace. In other words, Mr. Unger's medical evidence was insufficient. He did not establish prima facie discrimination.

Lenihan v British Columbia

In Lenihan v British Columbia, the LTD employee engaged in a placement program after an assessment found that she was fit to work. She cooperated for a while (submitted to a medical assessment and filled out a questionnaire) but then refused to have a specialist do an analysis crosschecking her abilities with existing job availabilities. She wanted to apply for 6 jobs that the government did not think she could do, based on the medical information she had provided. It therefore asked for an updated medical report, a list of required accommodation measures and information about transferable skills. Ms Lenihan felt this was an affront to her dignity and refused to comply. The arbitrator found that she had failed to cooperate and that the employer had no further steps to take to accommodate her.

CB v Emergenc

In CB v Emergency and Health Service Commission (2008), the complainant was a paramedic  in Vancouver. Paramedics work in teams of two, taking turns attending to patients and driving the ambulance.  When CB was diagnosed with epilepsy, he lost his Class 4 drivers' licence and was therefore unable to drive ambulances. The employer accommodated him by allowing him to attend to patients without having to drive the ambulance. When he reached full-time status, he applied for lateral transfers, as well as several promotions, in more desirable locations. The employer was only able to offer him one lateral transfer, to Victoria, due to difficulties in finding a post which could accommodate a paramedic who could not drive. After researching the cost of living in Victoria, CB decided that this would not be a suitable move for his family. When the employer failed to offer him anything else, he filed a grievance claiming discrimination on the basis of disability. 

The Tribunal found that CB established prima facie discrimination because he established that

  • he had a disability, that  
  • he suffered adverse treatment, and that
  • his disability was the cause of the adverse treatment.

 However, it then determined that the employer had accommodated CB to the point of undue hardship.  This decision was in part informed by :

  1. The complainant's decisions and conduct; he had been offered a reasonable accommodation (the position in Victoria) but had refused to engage in it based on personal lifestyle choices.
  2. The consequences of the discrimination (not being transferred to a more desirable location) were not severe, compared to other discrimination cases where employees lose their jobs, their salaries, or their full-time status due to disability.
M.F. v Capilano

In MF v Capilano Golf and Country Club Ltd. BCHRT (2008), a groundskeeper with a good employment record became dependent on drugs and started missing work. At a meeting with the employer, he adamantly refused offers of accommodation (rehabilitation programs) and signed, instead, a last-chance agreement, which he breached within a few weeks by failing to notify the employer of his need to be absent from work.  The employer terminated him. The Tribunal dismissed his complaint, ruling that the employee had thwarted any attempt to accommodate him by failing to take the minimal steps to assist the accommodation process. 

J.B. v Fraser Milner Casgrain

An employee of Fraser Milner Casgrain began to develop dizziness, headaches, breathing difficulties and rashes at work. Her doctors were not able to diagnose her with certainty; her symptoms indicated that she might have migraines, asthma or epilepsy. The employer commissioned an occupational specialist to do an assessment of her working space. Based on this assessment, it offered to make modifications to the workplace to accommodate her symptoms. In the meantime, the employer changed floors. The employee refused to believe that the accommodation proposed by the occupational specialist would work in a new workplace and expressed her concerns to the employer. The latter then asked for up-to-date medical information which she refused to provide. According to the Alberta Court of Appeal, the employee was fired with just cause; the duty to accommodate was discharged at the moment she refused to cooperate.

Gooding

In this case, Mr. Gooding, a liquor outlet manager, was dismissed for stealing alcohol from the liquor outlet over a period of one year. Gooding got rehabilitated, expressed remorse to the employer and asked it to consider a less severe penalty.  The Court of Appeal determined that the employee had not established prima facie discrimination because although he had a disability (alcoholism) and suffered adverse effects (dismissal) his disability was not the cause of the adverse effects.  Theft, not alcoholism, led to his termination.  The Court then ordered the arbitrator to use the hybrid approach to determine whether termination was excessive in this case.

To determine whether the penalty was proportionate to the misconduct, he Arbitrator considered eight mitigating factors:

  1. the special nature of the disease of addiction in relation to the specific circumstances of the case
  2. the compulsion associated with an addiction
  3. the nature and seriousness of the misconduct
  4. the impact beyond the individual grievor, including the risk posed to the employer and the impact on others in the workplace such as employees or the public
  5. the need for deterrence
  6. the employer's efforts to help the employee deal with the addiction
  7. the steps taken by the employee to deal with the disease
  8. the grievor's employment record  
  9. Other relevant factors

He determined that the termination was not excessive in this case. 

Analysis:

In favor of the grievor were factors 1, 2, 6, 7, 8.  The grievor suffered from alcoholism (factor 1), a dependency which is known to lead to compulsive acts of theft (factor2). Even though his employer made little effort to help him (factor 6), he went into treatment and made a full recovery (factor 7). But for the theft, he had a clean employment record: 25 years without discipline.

On the other hand, factors 3, 4, and 5 were in favor of the employer. Theft is amongst the most egregious of workplace misconduct (factor 3). Stealing from the liquor store had a negative impact at the workplace; it removed the fundamental entitlement of employer and employees to have honest employees/coworkers (factor4). There is a strong moral requirement to deter such behavior, both in the workplace and in society (factor 5.

Other relevant considerations were remorse, potential for rehabilitation, nature of the theft and clarity of employer’s policy/practices. Although the grievor showed genuine remorse and the potential for rehabilitation, the nature of his crime was neither isolated, spur of the moment, insignificant (in cost) and the employer’s policies and practices were never an issue.

Conclusion: the presence of an addiction or dependency does not necessarily immunize an employee from disciplinary or corrective action.

Brewery, Winery and Distillery Workers

In Brewery, Winery and Distillery Workers (2008), a long-term employee signed a last-chance agreement after missing two weeks of work for non-culpable (disability-driven) reasons: he was addicted to drugs. In contravention with the agreement, which obliged him to enrol in a drug rehab program and to stop taking drugs, the employee relapsed after being in a traffic accident and later failed a drug test. He also lied to the employer about the frequency of his drug use since the relapse. He was discharged and, according to the Arbitrator, with just cause. Although a relapse is non-culpable misconduct and is subject to a human rights analysis, dishonesty is culpable misconduct (i.e. not related per say to the disability) and is subject to a just-cause analysis. Breach of the contract, in the form of lying, justified the employee's dismissal.

NB The Arbitrator disagreed with the union which maintained that the Last Chance Agreement represented prima facia discrimination (like termination clauses) and that before applying it, accommodation should have been considered. The Arbitrator said that this kind of thinking would render last chance agreements meaningless.

Direct Energy and Communications

A plumber came forward to his employer to admit he was a cocaine addict. The employer referred him to the EAP, which enrolled him in a drug rehabilitation program. The employee failed to finish the program and suffered a relapse one day on the job. That day, he felt compelled to drive to a drug dealer in the company van and in company uniform to purchase cocaine, which he had in his possession when he then went to a client's home to do a plumbing job. The next day, he came forward to the employer and admitted what he had done and asked for help. The employer fired him. It later turned out that the employee suffered from PTSD and bipolar II disorder and required immediate and prolonged hospitalization. The Arbitrator held that his mental disorder had sparked his addiction, that his addiction had compelled him to buy drugs, and that this act of compulsion was non-culpable conduct. What the employee needed was to be rehabilitated not penalized. He ordered the employer to reinstate the grievor so that he could access the employer's benefit program. He cautioned, however, that any return to the workplace should be conditional upon clear medical evidence attesting to his fitness to work.

Manitoba Government

In 2005, following two angry outbursts against her supervisor, a vocational counsellor with a history of mental disability was given two short suspensions for insubordination. She agreed to submit to an independent medical assessment, which found her fit for work. Moreover, the employer contacted the employee's psychiatrist several times in 2005; he continually maintained that the illness was under control and was not responsible for her misconduct at work. She stopped working in April 2006, and was placed on medical leave of absence without pay. Later that month, she was caught by a coworker going through a senior administrator's filing cabinet. For this act of insubordination, she was discharged.

The Union grieved both suspensions and the discharge, claiming that the employee's misconduct was non-culpable. The Employer countered that the medical documentation that it had collected in 2005 confirmed that the employee was fit for work and totally responsible for her actions at work. At the hearing, the Arbitrator allowed post-discharge evidence, because he observed a pattern of escalating misconduct that seemed to be non-culpable in nature. This evidence included an independent psychiatrist's assessment, deeming the employee unfit for work, and a new assessment by the employee's own psychiatrist, claiming that her health problems were in fact affecting her ability to work. Faced with an employee with a disability requiring accommodation who was terminated for non-culpable misconduct, the arbitrator reduced the length of the first two suspensions and changed the termination into a month-long suspension (a penalty for the culpable aspects of the misconduct - the employee was aware that rifling through the senior administrator's filing cabinet was wrong.

In a case of escalating misconduct by an employee with a history of mental illness, employers should have up-to-date medical information in hand before taking any disciplinary actions.

Communications, Energy and Paperworkers

An employee with a gambling addiction broke into a co-worker's locker, stole her bankcard, withdrew $1600 from three ATMs and split the money with an accomplice from outside the workplace. The employee spent her half of the money gambling. When she was fired, she filed a grievance claiming that the employer should rehabilitate her, not punish her, for what amounted to non-culpable misconduct: it was the gambling addiction that had compelled her to steal the money so that she could gamble. The Arbitrator dismissed the grievance. He claimed that the employee was fired not for gambling (non-culpable conduct) but for repeated acts of premeditated theft (culpable conduct). The discharge was upheld.

as v University of Saskatchewan

This case involves a medical resident with a decade-long cocaine addiction who had been forced to drop out of a residency program at UBC in 1994 after suffering a series of relapses.

In 2002, he was matched, through CARMS, with the University of Saskatchewan which accepted him as a resident. Senior administrators found out about his drug addiction and made a few phone calls to UBC. Citing concerns for patient safety and a high probability of relapse, they broke the contract between the resident and the university.

The Tribunal found that the University of Saskatchewan had discriminated against Dr. Das. It had terminated his residency because of his disability, and had failed to discharge its duty to accommodate by failing to do an in depth risk analysis and by failing to meet with Dr. Das to work out an accommodation.

Hickey v Everest College

This case involved a community college student in dentistry who failed a practicum due to a physical disability she had acquired following a car accident. As a result of her disability, the student was not able to sit for extended periods of time. She provided the College with medical documentation outlining her physical restrictions and informed it that she was concerned about several procedures that she would have to do during her placement. In fact, she failed the placement and was suspended from the program. The Tribunal found that the College discriminated against the student when it took no measures to accommodate her.

Harris v Camosun College

A student in a criminology program alleged she was suffering from multiple allergies to environmental elements like paint, varnishes, gas fumes, plastics and carpets. She filed a complaint alleging harassment on the basis of disability (the College kept asking her for medical documentation) and discrimination on the same basis (the College would not allow her to tape one of her classes).

The Tribunal ruled that the College had neither harassed nor discriminated against the student on the basis of disability. Its requests for medical documentation was valid; the only evidence she had presented to them pointed to an allergy to house mites and cat hair, which had nothing to do with the academic environment. Furthermore, its refusal not to allow her to tape one of her classes was justified; this was a class in which personal interaction with fellow students was a fundamental academic requirement which could not be met through a tape recorder.

Although students have the right to privacy and dignity, they must provide personal medical information if they wish to be accommodated.