The Human Rights Tribunal of Ontario has ruled that the City of
Toronto was justified in requiring an employee to obtain a
psychiatric assessment because of "red flags" which
included a comment, "Do you want me to die?"
The employee's handling of a tense security-related incident
involving anti-poverty activists was questioned. When asked
by a City security supervisor for more information about the
incident, the employee said, "Do you want me to
die?" The supervisor testified that he found the
comment, "Do you want me to die?" to be concerning and
that he felt that he had an obligation to follow up for health and
safety reasons. He testified that he was concerned as he did
not know what was going on in the applicant's mind.
Shortly afterwards, the City told the employee that it had
made an appointment with a psychiatrist for him to obtain an
assessment. The employee testified that he felt humiliated, but
that he decided to go for the psychiatric assessment to prove that
he was "mentally fit", but that he also filed a complaint
with the City's Human Rights office due to the
"coercive" act of sending him for a psychiatric
assessment. The employee's supervisors did not receive
the assessment report, but were simply told that the employee
was fit to return to work without any restrictions from doing the
tasks of the job.
The Tribunal decided that the referral to the psychiatrist was
reasonable given that there were "red flags"
present, as the City representatives were acting in good faith
out of concern for health and safety and had determined that it
would not be appropriate to impose discipline on the employee for
his actions if they were related to a disability. Also, there
was no evidence that the City had broken confidentiality.
With respect to the "red flags", the City's
Manager of Security and Life Safety had testified that there are
"red flags", which are relevant in assessing a workplace
violence threat, which include "a lack of an immediate support
system, a preceding event . . . and a change in
character." He said that the "red flags" that
the City had identified were: "the applicant lived alone, was
emotional, had stated 'Do you want me to die?' . . . and he
had been uncharacteristically insubordinate."
This decision suggests that where an employee's behaviour
raises "red flags" about his or her mental health such
that the employee's – or other employees' –
safety may be at issue, an employer may be justified in requiring
the employee to submit to a psychiatric assessment. In
general, the employer is not entitled to receive the assessment
report but is entitled to receive the assessor's determination
as to whether the employee is fit for work and able to work
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