In Leonhardt and Manitoba (Department of Finance), Re, 2018 CarswellMan 767 the complainant, an information technology specialist initially worked for his employer, the Government of Manitoba for approximately seven years (over the period of 1999 to 2006) when he relocated to Ottawa.
In 2009 the complainant returned to Winnipeg to look after his ailing father who had been diagnosed with lymphoma. In 2010 the complainant experienced mental health issues for which he saw a physician and in 2011 he experienced substance abuse issues and commenced a 10-week non-residential treatment program through the Addictions Foundation of Manitoba.
Also in 2011 the complainant reapplied for employment with the Government of Manitoba after being away for about five years, was rehired and was then subject to six months of probation.
Approximately one month after being rehired by the Government of Manitoba the complainant began to suspect that two of his colleagues were tampering with the communal coffee pot, which led him to experience nausea, headaches, dry heaving, tiredness, confusion and excessive salivation. In short, his two co-workers were poisoning his coffee!
The complainant reported these concerns to the employer (first his immediate supervisor and after that the human resources manager) who encouraged him to see his doctor and informed him about the Employee Assistance Program (EAP). He was told that EAP was a confidential program that permitted employees to seek and obtain counselling through the program during paid working hours. The complainant responded that he did not require the EAP nor did he need to see a doctor. The employer then suggested he stop drinking the coffee until the matter had been investigated and resolved. The complainant insisted he would continue to drink the coffee.
Conversations continued with the human resources manager and the complainant subsequently attended her office in an agitated state re-asserting the allegations of being poisoned, suggesting he was experiencing symptoms right then and there (in her office). The human resources manager was concerned for his immediate safety and well-being and urged him to go to an ER and seek immediate medical attention to deal with his medical symptoms. The complainant declined, saying he knew what was happening to him and did not need a doctor to tell him about this. The human resources manager specifically asked him if there were any personal stressors in his life or if he was suffering from any mental or physical issues. He was “adamant” he was not. Again the complainant was referred to the EAP which he again declined.
The employer investigated the complainant’s claims; this included interviewing the two employees that had been implicated by the complainant. The employer concluded that the allegations of poisoning the communal coffee were unsubstantiated. The employer told the complainant it did not dispute he was experiencing the symptoms he described, but his allegations had not been substantiated because in large part no other employee experienced any health concerns following the consumption of the same coffee. During that meeting, the complainant revealed that two years prior he had been struggling with “substances”. He was asked if he needed help to deal with any issues and he said he did not. The employer once again emphasized it was a supportive workplace and that if the complainant were encountering struggles he should engage the EAP and seek medical help. Once again, the complainant declined.
The employer eventually terminated the complainant as a probationary employee on the stated reasons that the complainant had made very serious, disruptive accusations against colleagues in the workplace that were unsubstantiated and management had serious concerns that this behaviour would reoccur because he refused to seek medical help or engage in the EAP. The complainant filed a Manitoba Human Rights Commission complaint and the matter proceeded to a hearing.
The Manitoba Human Rights Board of Adjudication concluded that his allegations of poisoning and a perceived disability were a factor in his termination. As a result, the Board held that the complainant had made out a prima facie case of discrimination against the employer.
The Board of Adjudication then considered the Government of Manitoba’s duty to accommodate the circumstances of the case.
On the one hand, the Government of Manitoba argued that it had discharged its duty to accommodate because (in paragraph 62) its employees ” . . . inquired numerous times in numerous ways for information that could substantiate their concerns but received no information from the complainant.” On the other hand, the Commission and complainant argued that the employer failed to accommodate the complainant (also in paragraph 62) because “they could have made better, more direct efforts to inquire; they could have required the complainant to consult a physician as a condition for continued employment; or they simply could have done nothing, i.e. not rejected him on probation.”
In this case, the Board noted that the employer had gone through a serious process (that is, the “procedural component” of accommodation) of trying to determine what was going on and accommodate the complainant’s needs. Throughout, he did not disclose any mental health issues, declined to see a physician or avail himself of the EAP. Therefore, the Board concluded (in paragraph 67) that the Government of Manitoba ” . . . did take reasonable steps to understand the complainant’s disability-related needs in the first part of the analysis.”
It is important to note that in reaching this conclusion the Manitoba Human Rights Board of Adjudication acknowledged (in paragraph 65) there could be many situations where someone suffering from mental illness might not have insight into their condition due to the very nature of the disability; however, in this instance, it found no evidence to support the proposition. Furthermore, even if the complainant lacked insight into mental illness he did have information from various third-party caregivers to share with his employer, but he did not. Despite its efforts, the employer was “not able to obtain information in order to form an objective basis for the complainant’s disability-related needs”.
The Board of Adjudication then considered the “substantive component” of accommodation which relates to the reasonableness of the accommodation offered or the employer’s reasons for not providing accommodation. The Board noted the accommodation search is a multi-party process and (in paragraph 69) wrote “in the instant case the complainant failed to provide any information that may have led to reasonable accommodation at the relevant time. The employer did not have an objective basis upon which to determine reasonable accommodation.” Finally, in paragraph 71 the Board held: “It would not have been appropriate to impose a mandatory medical assessment on the complainant in the circumstances without an objective basis of the complainant’s disability-related needs” and paragraph 72 provides: “Not rejecting him on probation, or, put another way, simply overlooking the complainant’s allegation was also not reasonable.”
Accordingly, the complaint was dismissed.
Employers have a duty to accommodate an employee with a mental health concern which creates a barrier to their full participation in the workplace.
However, employees have their own set of obligations that, if not followed, can be fatal to a human rights complaint against the employer under the applicable human rights legislation.
Employee obligations in the accommodation process may include (depending on the circumstances):
- informing the employer about the existence of a disability and the requirements for accommodation (while recognizing at the same time that an employee may not have insight into their disability and/or an employer’s corresponding duty to be curious and inquire); and
- providing sufficient medical or other information on a timely basis, permitting the employer to assess the limitations imposed by the disability, and coming up with a reasonable accommodation plan in response.
In Leonhardt and Manitoba (Department of Finance), the complainant failed to provide any information that may have led to an objective basis upon which to establish reasonable accommodation for him. To the contrary, the employee refused to disclose any mental health issues, declined to see a treating physician and/or avail himself of the EAP all of which led to his complaint being dismissed.
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