Canada: Managing Misconduct and the Disabled Employee

Increasingly, employers face the dilemma of managing an employee who has engaged in misconduct, but who also suffers from a disability. This creates a thorny situation since it may not be appropriate to impose discipline on an employee if his/her misconduct is linked to the disability. What is the appropriate approach in those circumstances?

The British Columbia Court of Appeal has recently confirmed the "human rights" approach that is required by employers in "hybrid" cases that involve blameworthy (or culpable) conduct and conduct arising due to a disability (non-culpable conduct)¹. If an employee has a disability that is connected to the misbehaviour, an employer will have a duty to accommodate the employee’s disability to the point of undue hardship rather than dealing with the conduct strictly as a disciplinary matter. This becomes particularly complicated where the disability is a treatable disease (e.g., alcoholism, drug addiction, and, in some circumstances, mental illness) because it is recognized that employees who suffer from such disabilities must take some responsibility for treatment and misconduct.

But how much responsibility should be placed on the employee? How does the employer decide it has done enough to accommodate the employee? There is no definitive answer as to what an employer must do to fulfill its duty to accommodate and address "hybrid" cases. In assessing and managing these circumstances, an employer should consider the following:

1. Review each case on an individual basis. Investigate and document what has occurred. Consider what is known about the employee and any medical issues the employee may have. This process could take considerable time and effort. It will likely involve the employee, the union (if there is one), and, perhaps, medical practitioners.
2. Is there any link between the misconduct and the disability? That is, is there evidence that the employee’s misconduct was caused by symptoms relating to the disability? If so, then the "human rights" approach is required. If not, then the employer can discipline as appropriate.
3. Where the disability is a cause of the misconduct, the employer must meet its duty to accommodate the employee by engaging in an individualized assessment of how the employee can be accommodated (to the point of undue hardship).
4. Undue hardship means that the employer must be prepared to suffer some hardship in accommodating the employee. In fact, to fulfill the duty to accommodate, the employer must be able to show that it is impossible to accommodate the individual employee without suffering undue hardship. This is a very high standard, but one that is determined with balance, common sense and reasonableness in mind.
5. The factors that should be considered when deciding whether the duty to accommodate has been met may vary depending on the jurisdiction in which the employer operates. However, the most common are:

• financial costs;
• disruption of the collective agreement, if any;
• morale of other employees and the effect on the rights of other employees;
• interchangeability of the workforce and facilities;
• size of the employer’s operations;
• risks to health and safety of the employee, other employees and the public;
• whether the employee’s job itself exacerbates the disability;
• what efforts have been made by the employee to facilitate the accommodation process, including responsibility taken for rehabilitation and efforts made to address any relapses.

6. Consider non-culpable (e.g., required rehabilitation or treatment) and culpable (e.g., financial consequences, strict behavioural agreements) elements when managing and resolving "hybrid" cases. ²

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.