Disciplining an employee is never a pleasant experience – but when you’re dealing with a worker with mental health issues the situation becomes infinitely more stressful.
HRD Canada spoke to Cameron Wardell, associate at Mathews Dinsdale and speaker at Employment Law Masterclass in Vancouver, who shed some light on the contentious issue.
“Persons suffering from a disability, a term expressly including ‘mental disability’, are protected from adverse treatment by the Human Rights Code,” prefaced Wardell. “Accordingly, the Code prohibits employers from terminating the employment of an employee for any reason related to the employee’s mental health disability.
“While compliance with the Code requires accommodation of an employee’s disability, an employer may be able to demonstrate it has reached the point of ‘undue hardship’ in attempting to find a reasonable accommodation in some circumstances. Where undue hardship has been established, an employer may be able to dismiss a person otherwise protected by the Code.”
What Wardell went on to say was that if a conflict related to a mental health disability has arisen between an employee and his or her co-worker, undue hardship may be established where the employer can demonstrate a serious threat to safe. For example, if the conflict amounts to violence or creates an intolerable environment in the workplace for other employees or where the employer can demonstrate it has attempted or considered all reasonable accommodations without success.
“Examples of the latter might include appropriate training for the employee with the disability, separating the employees involved, or providing coaching in how to resolve conflict in the workplace,” added Wardell. “Undue hardship is a high threshold, and the legal test will likely not be met where the conflict is minor or where the employer has not tried other means to resolve it.
“Where a situation of conflict with a potential risk to safety exists, we often advise employers to get a ‘risk assessment’ from a qualified medical professional such that we have the information necessary to make an assessment of whether accommodation is possible. While the purposes of the Code are to protect individuals in traditionally marginalized groups, few decision-makers would force employers to continue the employment of someone creating a genuine and serious risk to the safety of themselves or others in the workplace.”
To hear more on this essential 2019 employment law topic and much, much more book your ticket to HRD Canada’s upcoming Employment Law Masterclass in Vancouver, here.