Employers in Canada are subject to a variety of legislation that governs the way they conduct business in areas ranging from environmental compliance to employee relations. What does an employer do when two of those statutory obligations seem to be at odds? While most employment related legislation interacts with little difficulty, on occasion fulfilling one statutory obligation may cause the employer to violate another obligation at law.
These were precisely the circumstances in which the Ontario Provincial Police (the “OPP”) found itself in the recent case Ontario Provincial Police Association v Ontario (Provincial Police) [OPPA]. In OPPA, the provincial police force ran into difficulty when it failed to properly balance a mentally ill employee’s right to accommodation under Ontario’s Human Rights Code (the “Code”) with other employees’ right to a safe work environment as set out in Ontario’s Occupational Health and Safety Act (the “OHSA”).
The Decision
OPPA involved a situation in which an officer attempted to commit suicide after having made a previous attempt and having taken several leaves of absence, which the OPP knew were related to her mental health issues.
The medical information obtained by the employer contained few details and generally advised that the officer could return to work on a graduated basis. However, the officer made statements disclosing she was not well and was not coping well with her return to work. Given the contradiction between the medical information received and the officer’s statements and actions, the employer continued to request additional medical information from the officer’s physician as it believed what the doctor was reporting was incorrect.
Ultimately, the employer elected to conduct an Independent Medical Examination (“IME”) to determine the officer’s suitability for a return to work. The IME, which the arbitrator noted was one of the most comprehensive he had seen, indicated that the officer could work but that she should be under observation, that she should return to work gradually, that she should not be in a “front-line” role with firearms until her coworkers felt she was ready, and that there should be a means for reporting any concerns about the officer’s behavior as part of her ongoing monitoring. The report also indicated that the officer should attend ongoing sessions with different medical practitioners to improve her condition.
Despite the IME and the OPP’s own policies, the OPP returned the officer to front line duties without any of the recommended safeguards in place. In the months before the officer’s suicide attempt, the OPP received many complaints from the officer’s coworkers related to her conduct that disclosed concerns about her potential to be a risk to herself, co-workers and the public. The OPP was also aware that the officer was not attending the treatments that had been recommended in the IME but nevertheless continued to allow the employee to work.
The union filed a policy grievance and individual grievances on behalf of the officer’s coworkers, alleging that the OPP failed in its duty under the OHSA to take every precaution reasonable in the circumstances to protect employees, violating its own policies in the process.
The Arbitrator’s Decision
The arbitrator acknowledged the importance of the duty to accommodate an employee under the Code, but held that it did not override the employer’s duty to provide a safe, healthy work environment under the OHSA. By ignoring the IME, failing to consider the many warning signs, including the officer’s emails and social media posts, her inability to perform her job professionally and the complaints received from her coworkers, the employer failed in its duty to provide a safe workplace under the OHSA and breached the collective agreement with the union as well as its own policies.
The arbitrator further reasoned that if the employer had handled the officer’s accommodation properly, namely by instituting the safeguards suggested by the IME, the officer likely would have been put off work before she created a health and safety risk for other employees. The arbitrator also noted that health and safety concerns are explicitly listed by the Code as meeting the threshold for “undue hardship” which is the point where accommodating an employee to the extent necessary for the role would place the employer in undue hardship.
The arbitrator awarded damages of $5,000 to $7,500 to each employee who had filed an individual grievance and also ordered several public interest remedies against the employer such as training and a formal apology.
Takeaway
Employers must consider all workplace parties when dealing with employment matters. The rights of individuals must be balanced against the rights of the group and employers must ensure that the approach adopted best addresses the needs of all parties. Where a reasonable compromise cannot be reached, the employer must consider what other steps should be taken so that the statutory rights of its employees are not infringed, potentially resulting in costs for the employer.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.
