The Facts

Mr. Lister worked in the maintenance department at a nursing home in St. Andrews, New Brunswick and was represented by CUPE, Local 1763. The employer had become concerned for Mr. Lister's mental stability, contending he was acting "erratic" and "non-predictable". The grievor also had a history of "causing trouble" for the employer and was the object of a police investigation for a non-work related incident.

In February 2012, Mr. Lister raised concerns with his employer and alleged the presence of asbestos on pipes in the nursing home. The Lodge brought in environmental consultants, but Mr. Lister questioned their qualifications and made statements challenging the accuracy of the expert advice they provided as to health and safety.

In March 2012, Mr. Lister attended a general staff meeting where he reportedly made inappropriate gestures and fell asleep. The employer then sent a warning letter to him, which was placed on his personnel file. A few months later, in the summer of 2012, Mr. Lister brought a tomahawk axe to work and, for this action, was suspended for 1.5 days as "progressive discipline." In the Fall of 2012, Management called a meeting with Mr. Lister for which he declined union representation when offered. Mr. Lister was instructed by the Employer that he would not be permitted to return to work until he had a psychiatric evaluation. He was immediately suspended, indefinitely, without pay, and escorted from the property. Mr. Lister was ultimately assessed by a psychiatrist, who determined that he did not pose a danger to himself or others; however, he missed over twenty (20) days of work without pay before being cleared.

CUPE filed three (3) grievances, two of which were the subject of the judicial review, these were: (1) alleging that the employer violated the collective agreement by not having a union representative present at the suspension meeting; and (2) that the employer had violated the collective agreement by suspending the grievor pending a psychiatric evaluation, without valid reason and without pay. The (3) third grievance concerned the 1.5 day suspension of Mr. Lister for bringing a tomahawk axe to work. On the third issue, the arbitrator concluded that the suspension was reasonable and the Lodge did not seek judicial review.

The arbitrator held that the Lodge had violated the collective agreement by not ensuring a union representative had been in attendance at the meeting with Mr. Lister. He had been told that he did not need such representation, but he clearly did. The Lodge had also violated the collective agreement by suspending Mr. Lister without cause and for over 20 days, which was contrary to the collective agreement.

The Decision

On judicial review, the New Brunswick Court of Queen's Bench upheld the arbitrator's refusal to accept the employer's argument that the suspension, due to mental health concerns was a "medical leave", and not a disciplinary action. The employer argued it did not intend to punish Mr. Lister and fully expected a psychiatrist would find him unfit to return to work; however, since Mr. Lister had no sick days left, he was simply "suspended" without pay, pending the evaluation.

However, there was significant evidence that the suspension was, in fact, disciplinary. Letters had been issued by the employer previously warning Mr. Lister of further "disciplinary action", Mr. Lister was escorted from the premises and Union representation had been offered at the meeting. Further, the suspension resulted in the grievor suffering a financial penalty, as he was unable to access sick benefits and received no pay. Ultimately, the Court of Queen's Bench concluded that the arbitrator was justified in finding that the employer had disciplined Mr. Lister by suspending him and prohibiting his return to work pending a clear psychiatric evaluation, and that this was a violation of the collective agreement.

What This Means For Employers

With the exception of certain safety-sensitive industries where a bona fide occupational requirement can be established, employers cannot discipline, suspend or dismiss employees suffering from a mental illness or disability. Employers have a legal duty under human rights legislation and/or collective agreements to accommodate all disability, up to the point of undue hardship. Unions, where applicable, also have legal duties within the accommodation process and can be of assistance in navigating "difficult" employee behaviour, including mental health issues where such employees may pose a risk not only to themselves, but the broader workplace.

Occupational health and safety legislation also requires employers to provide a safe working environment for their employees. Under certain conditions, with the proper evidence and context, employers may need to remove an employee with a confirmed mental illness to protect against harm to others or themselves. In such specific circumstances, an employer might be justified in preventing an employee from returning to the workplace until medical clearance is confirmed.

Note: This a reprint of an article by Leah Fergusson of Cox & Palmer.