How does an employer balance its obligation to maintain a safe workplace for employees with its duty to accommodate an employee with 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 the constable had mental health issues and had previously attempted suicide. The constable took a number of leaves of absences to deal with those mental health issues and the OPP received a variety of medical documentation, which cleared her to return to work after each leave.
One year before the suicide attempt at work, an independent medical examination (IME) was conducted. The report said the constable did not pose an increased risk to her co-workers or members of the public. The report recommended measures to allow co-workers to report any concerns they had.
In the months before her suicide attempt at work, co-workers 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 attempted suicide at work. One co-worker became ill and took a 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 failed to take every precaution reasonable in the circumstances to protect employees under the Ontario Occupational Health and Safety Act (OHSA), and failed to respond to health and safety concerns raised by workers in accordance with its policies.
What did the Arbitrator Decide?
The arbitrator said the constable's right to accommodation of her mental health issues under Ontario's Human Rights Code was important, but it did not override the rights of her co-workers to a safe workplace. The arbitrator noted that the Human Rights Code explicitly recognizes that health and safety issues must be considered in the accommodation process.
The arbitrator decided the OPP had breached the OHSA, the collective agreement and its own policies by:
- Failing to ensure that the constable was receiving appropriate medical care;
- Ignoring the constable's continuing mental health difficulties;
- Disregarding the IME report recommendations; and
- Failing to address concerns raised by her co-workers in a timely manner.
These failures created a health and safety risk for everyone in the workplace, including the constable. The arbitrator awarded damages of $5,000 to $7,500 to each employee who filed individual grievances, and a number of public interest remedies.
Significance for Employers
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 be faced with difficult decisions, and will need legal advice to navigate these issues with care and strike an appropriate balance.