Mental Disability in the Workplace: What do Employers need to Know?

Labour & Employment Newsletter – Spring 2017

 The term “mental disability” is broad and covers many conditions.  Human rights legislation may protect individuals with any of these conditions. This newsletter summarizes a recent decision dealing with an employee who has Attention Deficit-Hyperactivity Disorder (“ADHD”).  Given the ongoing developments in human rights law and seemingly increased prevalence of conditions such as ADHD, an analysis of this decision – and what it might mean for you as an employer – seems prudent.

Summary of decision

The recent arbitration decision in Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCT), Local 406 v Bonté Foods Limited, 2017 CanLII 12517 (NB LA) (“Bonté Foods”), provides a number of lessons for employers.

The Employee, “RD”, worked for Bonté for more than 14 years.  Bonté is well known across Atlantic Canada for supplying much of the product in a very popular food, the donair.   Bonté has been vigilant with regard to food hygiene regulations.  RD’s employment record was generally good, but had deteriorated in the last few years.  In 2014 and 2015 he had a number of injuries due to workplace accidents so had some time off work.  He returned to work in January 2016 and participated in a food hygiene retraining course,  scoring 100% on a food safety quiz.  After some changes to procedure in the workplace, RD participated in more workplace training.

RD did receive some discipline.    In May of 2016 Bonté disciplined him for breach of a hand scanning policy (hand scans were used to sign in and out of the workplace), a dispute over leaving the building on his lunch hour, and a “flow procedure problem”.  A Last Chance Agreement was put in place which, among other things, required RD to follow company policies, specifically as they related to food safety and health and safety.

After the Last Chance Agreement was signed, Bonté imposed a warning and two suspensions.  In September 2016 RD violated the food safety policy, and Bonté terminated his employment.

The Union grieved.  RD also filed a human rights complaint.

In November 2016, after RD’s termination but before the arbitration hearing, Bonté received a medical note from RD’s doctor (a general practitioner) saying that RD had been diagnosed with Adult Attention Deficit Disorder (“ADD”) in April 2011, and had been on medication ever since.  This was the first time that RD had provided a medical certificate confirming his diagnosis.  RD had casually mentioned to a supervisor “a few years back” that he had ADD, but had not mentioned it again until after his employment ended.  The Union was aware of RD’s diagnosis but did not mention it, and did not request any accommodation for RD prior to termination of  his employment.

Further, in December 2016 RD met with a psychologist.    This psychologist had RD undergo an assessment for Attention Deficit/Hyperactivity Disorder (“ADHD”) and then stated that RD met the diagnostic criteria for ADHD.

The arbitration occurred early in 2017.  Arbitrator Robert Breen, Q.C. accepted that RD had ADHD and that the ADHD played a role in the breach of the policy that led to the termination of his employment.  Arbitrator Breen further found that RD had told his supervisor that he had ADHD.  He added that even if RD had not told Bonté about his ADHD, his actions should have been a red flag.  He stated:

While satisfied that Bonté was advised and must be taken to have known of [the Employee’s] disability, I am satisfied that this Employer also ought to have known that recurring mistake events called for reasonable inquiries of [the Employee] as to the cause of his observable problems, particularly on the circumstances going to the last incident preceding his discharge.

I find that Bonté ought reasonably to have posed the questions: “What is going on? Is there a problem? Is what is happening linked to the/a disorder”?

The Arbitrator ordered that RD be reinstated to his employment at Bonté, that the parties seek strategies to assist RD at work, and that RD follow any medical program prescribed for him by his personal physician, among other terms.

What can other Employers learn from this decision?

A number of points in the decision are noteworthy.

First, the decision highlights that mental disability is broadly defined and includes a learning disability such as ADHD.   That conclusion is consistent with the broad definitions usually contained in human rights legislation.  The Nova Scotia Human Rights Act, for instance, defines “physical disability or mental disability” in the following way:

  • “physical disability or mental disability” means an actual or perceived
    • (i) loss or abnormality of psychological, physiological or anatomical structure or function,
    • (ii) restriction or lack of ability to perform an activity,
    • (iii) physical disability, infirmity, malformation or disfigurement, including, but not limited to, epilepsy and any degree of paralysis, amputation, lack of physical co-ordination, deafness, hardness of hearing or hearing impediment, blindness or visual impediment, speech impairment or impediment or reliance on a hearing-ear dog, a guide dog, a wheelchair or a remedial appliance or device,
    • (iv) learning disability or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
    • (v) condition of being mentally impaired,
    • (vi) mental disorder, or
    • (vii) dependency on drugs or alcohol.

Second, the decision in Bonté shows that an employer can be deemed to have knowledge of an employee’s disability even if the employee has not provided a medical certificate.  Arbitrator Breen found that Bonté’s obligations under the duty to accommodate were triggered when RD  disclosed his diagnosis to his supervisor in 2011.  As the Employer knew about the Employee’s disability, it should have made a reasonable inquiry into whether the disability had any role in the recurring mistakes being made by the Employee.  The Employer’s failure to take any steps in the accommodation process or to investigate what effect, if any, the Employee’s disability was having on his performance at work, was therefore discriminatory under the applicable human rights legislation.

In a related point, that conclusion also means that an employee does not necessarily have to make a formal written request for accommodation.  If it is clear that if an employee needs to be accommodated, the employer’s duty to accommodate may be triggered.

This decision means that all employers have to be attuned to their employees and any health conditions that might have an impact on the workplace.