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17 April 2019
How can an employer balance its obligation to maintain a safe workplace for employees with its duty to accommodate an employee who has serious mental health issues? According to a recent arbitration award, an employer may inadvertently breach one statutory obligation by satisfying another.
A police constable employed by the Ontario Provincial Police (OPP) attempted suicide in the workplace. The OPP knew that the constable had mental health issues and had previously attempted suicide. The constable took several leaves of absence to deal with those mental health issues and the OPP received a variety of medical documentation, which had cleared her to return to work after each leave.
One year before the suicide attempt at work, an independent medical exam was conducted. The report said that the constable did not pose an increased risk to her co-workers or members of the public. The report also recommended measures to allow co-workers to report any concerns they had.
In the months before her suicide attempt, co-workers had repeatedly raised concerns with the OPP about the constable, including a perceived safety risk to co-workers and the public. The OPP requested updated medical documentation from the constable's doctor but did not identify the specific concerns that had been raised. Updated medical documentation was received after the constable had attempted suicide at work. One co-worker subsequently became ill and took medical leave, believing that, in voicing his concerns about the constable, he had contributed in some way to the constable's suicide attempt.
The union filed a policy grievance and individual grievances on behalf of the co-workers, alleging, among other things, that the OPP had failed to:
The arbitrator said that the constable's right to accommodation of her mental health issues under Ontario's Human Rights Code was important, but that it did not override her co-workers' rights to a safe workplace. The arbitrator noted that the Human Rights Code explicitly recognises that health and safety issues must be considered in the accommodation process.
The arbitrator decided that the OPP had breached the Occupational Health and Safety Act, the collective agreement and its own policies by:
These failures created a health and safety risk for everyone in the workplace, including the constable. The arbitrator awarded damages of C$5,000 to C$7,500 to each employee who had filed individual grievances and several public interest remedies.
Employers must consider the rights of all workplace parties when managing an employment issue. A single employee's rights – even human rights – cannot be considered in isolation and to the exclusion of the rights of all others. Employers facing seemingly competing statutory obligations will face difficult decisions and will need legal advice to navigate these issues with care and to strike an appropriate balance.
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