Femme Fatale

Believe it or not, awards for damages caused by mental injuries at work have increased 700% in recent years. 

If you’re thinking this trend is being driven by traumatic PTSD claims filed by first responders, you get an A for effort, but you’d be wrong. In fact, it’s depression, anxiety, and burnout that lead the pack. Government workers, healthcare, professional services, retail—you name the sector—the incidence of psych claims is spiking across the board. Even the negligent imposition of excessive work demands may attract such liability if it results in foreseeable mental injury.  

Some employers may also be surprised to learn they have a legal duty to inquire into the mental health of employees.  When the employer is aware, or reasonably ought to be aware, that a disability is negatively affecting an employee’s work performance, the employer has a duty to inquire about the situation and accommodate the disability to a point of undue hardship.  Moreover, the employer will not be sheltered from liability where it turns a blind eye to tell-tale signs of disability. 

Think twice before pulling the trigger

Canadian employers often misunderstand their human rights obligations and the associated legal exposure for violations. But a spate of recent landmark cases at human rights tribunals has given employers much greater cause for concern. 

Unlike a court, human rights commissions have extraordinary powers to remedy discrimination. The list includes mandatory reinstatement with back pay—sometimes years after an employee’s departure—general damages for discrimination, human rights training, and forced sensitivity courses. For all of these reasons and more, employers must beware.

Femme Fatale

One particular human rights decision caught my eye recently.  In this case, the company accused of contravening the Code is a large engineering firm with which I’m very familiar. This particular company runs a tight ship, has an excellent reputation in its industry, and by all accounts is a great place to work—which is why the case piqued my attention. 

As the story goes, a young engineer we’ll call Julie was hired to join the firm’s heavy civil division. Julie was described as quiet and shy by her coworkers, but the quality of her work was beyond reproach.  She arrived on time, met deadlines, and seemed to fit in reasonably well considering her short tenure.

Welcome to my dark side

Several weeks later, Julie began exhibiting uncharacteristic behavior.  The normally soft-spoken and reserved engineer began showing up in exceedingly short skirts and low-cut tops, donning attire that violated company dress code. Her manager avoided the issue until Julie’s wardrobe left practically nothing to the imagination, at which point he was forced to act.

The record shows that Julie became incensed and lashed out, cursing at her boss and storming out of his office. Blazing down an office hallway, she collided with co-workers and proceeded to curse them out as well. It’s not difficult to imagine, myself having spent considerable time in that normally hushed and stately atmosphere, that these shenanigans may have ruffled a few feathers. 

Julie went AWOL for several days after the incident. Her manager called multiple times and sent emails but her whereabouts were cloaked in mystery.  Monday morning the following week, Julie made a surprise appearance in the office. She was dressed in professional attire and her demeanor was contrite.  Apologizing profusely, she explained that she was going through a rough patch in her personal life, but henceforth promised to park her emotions at the front door.

Concerned about her precarious state, Julie’s boss temporarily reduced her workload and scheduled weekly one-on-ones to support her recovery.  For a time, these accommodations worked wonders and Julie was back to her old self. That is, until the company lunchroom became a boxing ring. 

Royal Rumble 

Overhearing nearby commotion, the manager rushed to the lunchroom to find Julie engaged in a physical altercation with several other staff members. Julie was highly aggressive and shouting profanities, accusing staff members of conspiring against her.

By this time, the manager had obviously reached point break. He broke up the tussle and then promptly escorted Julie to his office.  At that point he informed her that a taxi was waiting and that personal belongings would be couriered.  Given that Julie was only six weeks into her probation, the manager felt within his rights to send her packing.

Soon after however, Julie filed a human rights complaint against her employer on the grounds of discrimination due to disability.  

Human rights 

The Commission heard that Julie suffers from bipolar and intermittent explosive disorders. Literature indicates that these illnesses cause sporadic bouts of rage, depression, mania, and elation—sometimes within a single day. Julie’s lawyer argued that the employer made no substantial attempts to accommodate and was derelict in its duty to inquire into the complainant’s well-being.   

The employer disagreed, claiming that accommodations were made in the form of reduced workload, and that the probationary status of the former-employee acquitted them of any wrongdoing. And furthermore, they went on to say, Julie never once disclosed her illness.

The Human Rights Commission ruled in favour of the complainant, finding that mental disability was a factor in the decision to terminate her employment. In upholding the complaint, the Commission awarded damages in the amount of $25,000 for harm to dignity, feelings and self-respect. In addition, Julie was to be reinstated along with full back pay and benefits. And lastly, the employer was ordered to undergo human rights training and forced sensitivity courses.

Key points 

The case above makes it clear that where circumstances warrant, an employer has a duty to inquire into any possible medical issues impairing an employee’s behaviour, even when the employee is on probation. Moreover, job candidates are under no obligation to disclose medical issues, nor can the employer ask about medical status prior to a signed employment contract.  

The Commission chided the employer for “rushing to judgement” without “making enquiries into the complainant’s disorders”.  The Commission also held that, prior to her termination, the employer had a duty to warn the complainant that her employment was in jeopardy. 

It’s worth mentioning that whether you agree or disagree with the manager’s decision to discharge, the more appropriate response may have been to place Julie on paid leave until cooler heads prevailed. 

This would have at least bought the employer time to gather information, seek the appropriate counsel, and make an informed decision.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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About Me

Ben Barfett, Principal and Consultant, has spent his life in the construction sector, specifically heavy civil, enviro, commercial, and energy. Having held senior roles in business development, technical advisory, and regional management, he earned his stripes in the field and in head office. Conscious of the interplay between commercial, legal, and execution aspects of construction, his business insights are informed by expertise in WCB policy and enhanced with disability-specific training. 

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Blue Collar Consulting

Blue Collar Consulting is a WCB and disability management firm. The company specializes in rapid and affordable disability solutions that advance current claims, contain the cost of future claims, and get injured workers back on their feet. 

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