In a recent decision, an Alberta arbitration board has ordered a unionized hospital employee to be reinstated with back pay after the employee was terminated for cause for alleged misconduct.
The board found that not only was termination an excessive response to the employee's conduct, the employer failed to meet its duty to accommodate and did not properly consider the employee's medical condition before terminating the employee's employment.
What Happened?
The series of events leading to the termination began when the employee was assigned to transport a patient from admissions to the hospital's maternity ward. When the employee arrived at admissions, the necessary paperwork was not ready. He then spoke loudly and impatiently to the admitting clerk, which he later admitted was inappropriate.
The next day, the employee was observed with his mask on his chin while carrying a bottle of water. A supervisor instructed him to pull the mask up, which he did.
The employer held an investigation meeting into these two incidents. During the meeting, the employee became upset and stated that he felt he had been treated “like a dog” by his supervisor. After a break in the investigation meeting, the employee disclosed to the employer that he suffered from anxiety and depression.
Shortly after the investigation meeting, the employee called in sick and indicated that he expected to be off work “for awhile”. The employee's doctor subsequently indicated that:
- the employee suffered from a medical condition;
- the condition could cause him to communicate inappropriately with others;
- the employee got overwhelmed when under pressure;
- the employee was fit to return to work with accommodation in the form of HR support and communication to clarify misunderstandings.
The employer reviewed the doctor's communications, but did not conduct any other assessment of the employee's abilities, capacities, or needs.
The employer terminated the employee's employment seven months after he commenced his leave from work. In the termination letter issued to the employee, the employer stated that it reviewed the medical information provided by the employee and concluded that it was unable to accommodate the employee without undue hardship.
What Did the Arbitration Board Decide?
The arbitration panel found that the employee's termination could be overturned on two separate grounds:
- the termination was an excessive response to the employee's conduct, and
- the employer failed to establish that it could not accommodate the employee.
With regard to the grievor's conduct, the arbitration panel found that:
- the employee's interaction with the admitting clerk was inappropriate, but it was a very minor incident which would never be a ground for termination;
- the employee had removed his mask to take a drink while on a break, which was not misconduct or cause for discipline; and
- the employer's allegation that the employee was disrespectful at the investigation meeting was not supported by the evidence at the hearing.
Based on how minor the sole incident of inappropriate conduct was, the termination was an excessive response.
Applying human rights principles, the arbitration panel found that the employee's disability was a factor in the employee's conduct and therefore, there was a duty to accommodate. In finding that the employer failed to meet its duty to accommodate, the Board found that the employer failed to comply with its own accommodation policy. In cases of undue hardship, the policy required the employer to advise the employee what factors were considered in the accommodation process and the specific reasons why accommodation could not be provided. However, the employer never indicated how the threshold of undue hardship was reached or why, nor did it even advise the employee or union that it was considering accommodation.
As a result, the employee was ordered to be reinstated with accommodation and made whole back to the date of termination.
Takeaways
Whether termination for cause is justified is decided on a case-by-case basis considering the factual circumstances. This decision is an important reminder of the high threshold employers need to meet in order to justify a termination for cause. Minor incidents will rarely support an allegation of cause.
This case is also a reminder to employers that the duty to accommodate entails both procedural and substantive duties. When confronted with a situation where apparent misconduct may be linked to a disability, employers must take steps to consider accommodation and should document the steps taken in accordance with their accommodation policies and applicable human rights laws.
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.
