In the wake of a difficult romantic relationship in the workplace, the employee, who suffered a major depression, left the workplace for the total period of disability covered by the collective agreement (104 weeks).
After having proceeded with an administrative dismissal of the employee at the request of the union, the employer agreed to proceed with a medical arbitration in order to reassess the condition of the employee. The designated psychiatrist concluded that the employee could progressively return to the workplace with lighter job duties, and this was authorized by the employer.
However, the return to work proved to be very difficult and gave rise to a series of incidents including complaints of harassment by a work colleague and an attempted suicide by the employee.
The employer thus removed the employee from the workplace and asked for a new expert’s report. The report disclosed that the employee was an active psychotic affected by delusions and totally unfit for any type of work. The psychiatrist did, however, remark that with adequate pharmacological treatment it was possible that the employee could return to the workplace after three months. Faced with this very discouraging prognostic, the employer carried out an administrative dismissal of the employee. The union challenged the dismissal by way of grievance.
The arbitration tribunal reviewed any and all accommodations attempted by the employer including:
- The consent to medical arbitration and the progressive return after lapse of the 104-week period
- The offer of several choices of positions during the progressive return to the workplace
- The remuneration of the employee from his vacation bank to cover unworked periods and
- The medical reassessment within the context of the progressive return.
The arbitrator concluded that, based on the facts and circumstances, it was impossible to accommodate the complainant due to his poor state of health and the disruption caused by his presence in the workplace.
The arbitrator stated that accommodation should be related to the ability of the employee to perform a specific form of work; accommodation cannot be used to “give” or to confer upon the employee benefits in relation to his employment.
Thus, in order to benefit from an accommodation, the union and the employee have to demonstrate the capacity of the latter to work within a future timeframe that can be reasonably determined. In the present matter, the arbitrator concluded that it was not demonstrated what other work the employee could carry out, nor what other accommodation measure could be attempted.
Finally, with respect to the possibility for the employee to reintegrate into the workplace after three months following treatment, the tribunal concluded that this was not a return that could be qualified as “within a reasonably foreseeable future”. In the eyes of the court, this was merely a “possibility”, which could only be achieved if the treatment succeeded.
Furthermore, the tribunal noted that even if the employee were capable of resuming work, there was no assurance that he would not relapse and once again disturb the work atmosphere by engaging in an inappropriate incident.
The administrative dismissal of the employee was thus upheld.