I recently read a case coming out of Yukon where an employee accused his employer of discriminating against him on the ground of mental disability, contrary to the Yukon Human Rights Act.
In its decision, the Court of Appeal confirmed that the employer directed the bipolar employee to take a paid sick leave and obtain a medical assessment—not because the employer had a reaction based on a stereotype involving bipolar disorder, but because the employee was overly aggressive, disruptive and acted inappropriately in a meeting. After hearing the evidence, the Human Rights Board of Adjudication made a clear and unquestionable finding of fact that the employee was especially disruptive, and this finding was not to be overturned.
This employee had been accommodated by the employer for six years through the use of flexible work arrangements including more frequent breaks, restructuring of work tasks, allowing flex time and providing him permission to work from home.
Instead of disciplining the employee, the employer made the right choice of not taking any major action—just the temporary measure of a paid leave—until the employee’s medical situation was assessed. The employee’s manager even offered words of support and encouragement, saying, “I am a strong supporter of yours, and I want to support you in any way I can and help you to return to work as soon as you are able to.” The employer was prepared to continue to accommodate the employee, short of tolerating disruptive and inappropriate conduct inconsistent with performance of his duties.
Therefore, the employee could not establish discrimination in this case. The employer had already accommodated the employee for several years, and was not acting arbitrarily or negatively when it placed him on paid sick leave. The employer was disciplining the employee in a reasonable manner, while looking for more information about his condition.
Interestingly, upon learning that he had bipolar disorder, the employee proceeded to make a presentation to management about his condition, and he continued to proactively educate his fellow employees regarding the condition. Since the employer understood what was going on with the employee, it was able to work with the employee and accommodate him.
This is a success story, and perhaps we can all learn from this case. Effective communication and education about an illness can actually help both the employee and employer in the accommodation process. Employees are advantaged because the people around them understand what they are going through and can be more empathetic to their situation. Similarly, employers are advantaged because they are given the tools to more effectively accommodate the employee and provide an opportunity for the employee to be as productive as possible.
First Reference Human Resources and Compliance Editor
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