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Queen's University
 

Manitoba Government

In 2005, following two angry outbursts against her supervisor, a vocational counsellor with a history of mental disability was given two short suspensions for insubordination. She agreed to submit to an independent medical assessment, which found her fit for work. Moreover, the employer contacted the employee's psychiatrist several times in 2005; he continually maintained that the illness was under control and was not responsible for her misconduct at work. She stopped working in April 2006, and was placed on medical leave of absence without pay.  Later that month, she was caught by a coworker going through a senior administrator's filing cabinet. For this act of insubordination, she was discharged.

The Union grieved both suspensions and the discharge, claiming that the employee's misconduct was non-culpable. The Employer countered that the medical documentation that it had collected in 2005 confirmed that the employee was fit for work and totally responsible for her actions at work. At the hearing, the Arbitrator allowed post-discharge evidence, because he observed a pattern of escalating misconduct that seemed to be non-culpable in nature. This evidence included an independent psychiatrist's assessment, deeming the employee unfit for work,  and a new assessment by the employee's own psychiatrist, claiming that her health problems were in fact affecting her ability to work.  Faced with an employee with a disability requiring accommodation who was terminated for non-culpable misconduct, the arbitrator reduced the length of the first two suspensions and changed the termination into a month-long suspension (a penalty for the culpable aspects of the misconduct - the employee was aware that rifling through the senior administrator's filing cabinet was wrong. 

In a case of escalating misconduct by an employee with a history of mental illness, employers should have up-to-date medical information in hand before taking any disciplinary actions.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000