Employers in Canada can’t discriminate against employees based on mental disabilities. But the broad interpretation that courts and arbitration boards frequently apply to human rights laws often makes it difficult to know where the boundaries of “mental disability” lie.
In a recent arbitration decision in Ontario, Windsor (City) and WPFFA (Elliot), the arbitrator found that an employee’s mood problems and stress issues weren’t classifiable as mental disorders. He didn’t qualify as having a mental health disability requiring accommodation.
Kim Elliot worked as a firefighter for the city of Windsor for nearly 10 years. The shift schedule for firefighters consisted of rotating, 24-hour shifts. Good attendance by firefighters was vital to the city. Specified numbers of firefighters are required to operate the fire equipment.
In the years leading up to his dismissal, Elliot had been disciplined a number of times for missing scheduled shifts. Discipline was on an escalating scale. Just before his termination, he had been suspended without pay for four shifts. He was warned that any future absences might result in dismissal.
Elliot also took a two-month medical leave for personal reasons largely related to his marriage. He saw a psychologist who described Elliot as having a temporary “Adjustment disorder with related depressed mood & mixed anxiety stemming from a series of difficulties (financial, marital breakdown, job pressures, community difficulties).” This diagnosis was never disclosed to the city.
About a year after his medical leave, Elliot missed five consecutive shifts. The employer terminated him for cause.
Relying heavily on Elliot’s psychological treatment, the firefighters’ union grieved Elliot’s dismissal. It alleged that he suffered from a mental disability as defined by the Human Rights Code. His psychologist gave evidence that during times of stress, his thinking “narrowed” and he obsessed about the cause of stress while remaining oblivious to consequences of his actions.
The psychologist labeled Elliot’s problem as “dissociation,” which he distinguished from a diagnosis of “dissociative identity disorder.” He also noted that Elliot had “mood-related problems.”
The arbitrator had to decide whether Elliot’s condition was a “mental disorder” and thus qualified as a mental disability under the code. The arbitrator noted that not all mental disorders are well known or understood. He also noted that certain people respond better to stress than others.
Despite this, the arbitrator found that Elliot had no mental disorder. He based this largely on the lack of diagnosis at the time of termination. He dismissed the union’s arguments based on behavior.
In short, although Elliot hadn’t behaved in a manner like most other firefighters (or most other employees) and although a psychologist placed him on the “psychotic” end of a neurotic-psychotic spectrum in dealing with his anger and stress, these were particular behaviors and not a substitute for a diagnosis of a mental disorder. The termination was therefore justified.
Lesson for employers
This case clarifies what qualifies as a mental disability under the code. Despite the presence of behaviors that could indicate mental health issues, the arbitrator relied on a lack of official diagnosis to uphold termination. The case illustrates that not all employees who miss work because of stress have a mental disorder. Nor does poor anger-management and stress-management equate, without more, to a mental disability.
It should also be noted that the arbitrator placed some weight on the timing with which the mental disorder argument was brought. The union first raised the issue after termination. There had previously been multiple disciplinary proceedings. This case suggests that in instances where a chronically absent employee alleges discrimination resulting from a mental disorder, decision makers will be less likely to give credence to such claims if the employee failed to raise disability concerns before termination.
A 2010 LLB graduate of the University of Calgary, Kyla Stott-Jess is completing her articles with the firm's Calgary office. Once she is called to the Alberta bar in September of 2011, she will join the Commercial Litigation practice group. Kyla plans to develop a broad practice that includes work in corporate/commercial, employment, product liability, energy, privacy, transportation, negligence and contract disputes.