Accommodation of Mental Health Issues and Safety of Others in the Workplace; Finding the Balance

By Jeff Palamar on 2018/07/23

Reasonable accommodation to the point of undue hardship as required by human rights legislation is all about compromises.  Often there is a legal requirement for employers to compromise with lessened productivity or by paying more to get the work done.  In some cases the compromise even extends to the safety of others in the workplace.

Toronto Transit Commission and Amalgamated Transit Union, Local 113, Grievance C.D. (#51788), 2018 CanLii 54666 (Stout) addressed a grievance by an employee who threatened (while off work) that if he returned to work he would “rip the face off” his foreperson, and “mutilate it”.  The employee was fired, that was grieved, and the grievance settled.  The employee was allowed a possible return to work on certain conditions, including seeing a specialist for a “comprehensive written assessment to determine if he posed a risk of violence or whether he could be safely returned to the workplace”.

The employee met a psychiatrist with extensive experience in workplace violence and risk assessment.  The psychiatrist wrote:

…moderate risk for physical violence, and a greater risk for other misbehaviour, including verbal aggression.

…I would expect that [his] risk of physical violence is modest, but risk of disruptive behaviour, or verbal aggression, is at least moderate, and there will likely be significant challenges with governability.

As to safety risks or risks of violence on a return to work, the psychiatrist wrote:

…I believe this gentleman is likely at modest risk of physical aggression, but at potentially significant risk of verbal aggression, thus disruptive behaviour in the workplace.  Whether this gentleman can be “safely returned to work”, in the context of verbal aggression, depends largely on the response of the environment around him (as opposed to physical aggression); some persons may feel less safe in a hostile or verbally aggressive interpersonal context, and others may be less troubled by his presentation.

…I do not believe that the [treatment] that [the employee] participated in has changed his level of risk.

Based on this, the employer refused to allow the employee to return to work.  This refusal led to a second grievance, and an arbitration.

The issue was whether the risk of violence was acceptable, and so whether the employee could safely be returned to work.  The employer argued the earlier settlement did not limit the term “risk” and so any risk at all was unacceptable. The union argued only a substantial risk was unacceptable.

The arbitrator assessed the risk through a lens of reasonableness.  He said if the parties had agreed to require an absolute zero risk, the settlement would specifically have required that.  Instead, the assessment sought to determine if he posed “a risk of violence or whether he could be safely returned to the workplace”.

The psychiatrist’s opinion was that the employee posed a “modest risk of some form of aggressive behaviour, likely largely verbal…the risk of physically aggressive behaviour is likely quite modest”.

The arbitrator noted that if the psychiatrist had believed the employee could not be safely returned to the workplace (i.e. presented an unacceptable risk of violence) he would have said just that in clear and unambiguous language.  The psychiatrist did not do so, and as a result the arbitrator concluded the employee should return to work.

On the specific issue of safety of others, the arbitrator stated that:

I acknowledge the [legislation] impose an obligation on employers to take all reasonable precautions to facilitate a safe workplace. The focus of that legislation is reasonableness in preventing harassment and abuse in the workplace. It would be impossible to eliminate all risk of aggressive behaviour in any workplace, let alone in this workplace. The fact is that people sometimes lose their cool, be it employees, supervisors and in this workplace the customers. In my opinion, the TTC has fulfilled their obligations by having the [employee] assessed by [the psychiatrist]. Returning the [employee] under these circumstances would not violate any legal obligation to provide a safe workplace because the evidence does not disclose that the [employee] presents an unreasonable risk of violence.

The case was decided on an interpretation of a specific settlement agreement between an employer and a union, and does not imply that a mentally ill employee has the absolute right to work, no matter how potentially unsafe to others.  It does however reinforce that a strict zero tolerance, even of safety risks, is likely not reasonable.

Jeff Palamar is the Leader of the Labour and Employment Practice Group at Taylor McCaffrey LLP, the Manitoba member of the Employment Law Alliance.

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