Special note to BC readers:
If this subject is of interest to you, you may wish to attend our related workshops. Some spots are still open for the following sessions – we recommend registering soon. We hope to see you there.
Conducting Sexual Harassment and Violence Investigations
November 27-28, 2018 in Vancouver, BC
This advanced-level training is a must for any staff who may respond to and/or investigate sexual harassment or sexual assault complaints.
Workplace Investigations in the University and College Context
November 29, 2018 in Vancouver, BC
This training examines the demands and challenges that investigations present in the university and college context, and allows for a deep dive into possible solutions.
Workplace investigations and workplace accommodations are two distinct procedures. The former is a fact-finding process that occurs in response to a complaint or incident of harassment. The latter is a procedure by which an employer and an employee work together to accommodate an employee’s limitations as a result of an injury, illness or disability. But when the accommodation relates to an illness that has an impact on an employee’s interpersonal behaviour, such as a mental illness, these two distinct procedures may intersect.
Take a moment to consider a two-circle Venn diagram. One circle outlines workplace investigations and the other outlines accommodations for employees with mental illness. In the space where those two circles overlap, what common issues and legal obligations emerge? How might an employee living with a mental illness be implicated in a harassment or disciplinary investigation?
A workplace investigation that takes into consideration an employee’s mental illness can be very simple.
In a case from BC involving a personal support worker who was found to have amassed several hours of pornographic videos on the employer’s computer system, the employer representative tasked with investigating this incident asked him if there was anything that was “contributing” to this type of behaviour. At this point in time the employer had no knowledge of this employee’s mental illness. The employee said that he knew it was wrong to watch pornography at work but he “could not stop himself.” When he grieved his termination, which occurred as a result of the investigation into this incident, he claimed that he had depression and that watching pornography at work was a non-culpable consequence of his mental illness. Unfortunately for him, the medical evidence did not suggest a correlation between his mental illness and watching pornography.
While the termination was not discriminatory because of the lack of correlation between the misconduct and the employee’s mental illness, the investigation into this incident was also not discriminatory because the employee’s potential mental illness was taken into consideration by the investigator.
This case demonstrates that to be a conscientious investigator one must not only look at the facts of what occurred, but also the underlying or systemic issues that may affect those facts.
In a more recent labour arbitration case, we see what happens when an investigation fails to consider the role of an employee’s mental illness.
An officer with the Ontario Provincial Police (Officer “X”) returned to work after a failed suicide attempt and a diagnosis of Major Depressive Disorder and Borderline Personality Disorder. An independent medical examination recommended that she see a psychologist regularly for 12 months, but her insurer only covered six sessions. After meeting with a psychologist for a couple of months, Officer X gradually returned to full-time work. In the 10 months that followed her return to work, she had numerous problems with her colleagues. She was frequently upset with them and complained that they were undermining her.
On one occasion, Officer X engaged in what appeared to be serious wrongdoing. She apprehended an individual because she believed that he was driving while impaired. She said that the driver appeared to have dilated pupils, slurred speech and a smell of alcohol. However, there was no record of her completing the Standardized Field Sobriety Test (the “Test”). When her second-in-command officer (Officer “Y”), asked her about the record of the Test before he administered a breathalyser, she said that she did not need to fill out the required forms for the Test and lambasted him for questioning her ability to perform her duties. Officer Y was unsure about what to do and called a Sergeant to seek advice. He was directed to administer the breathalyser.
The driver’s blood-alcohol level was zero.
After this incident, Officer Y and Officer X initiated complaints against each other, which were investigated by the Ontario Provincial Police Professional Services Bureau. The results were disastrous for both officers. When Officer Y found out about the complaint, he broke down and cried. The existence of the complaint also cost him a job promotion. Two weeks after Officer X was interviewed for the investigation, she attempted suicide again. When Officer Y learned of this suicide attempt, he felt responsible for it.
The Grievance Arbitration
A number of colleagues of Officer X, including Officer Y, as well as the Ontario Police Association, raised grievances against the Ontario Provincial Police for how it handled Officer X’s accommodation for her mental illness.
The Arbitrator found that the investigation into the incident outlined above was “groundless” insofar as it missed what should have been investigated – the impact of Officer X’s mental illness on the incident. Rather than inquiring into how Officer X’s mental illness may have contributed to an improper arrest and her behaviour with Officer Y, it handled the incident as a conventional disciplinary matter. Therefore, the Ontario Provincial Police did not fulfill their obligation to maintain a discrimination-free work environment under the Human Rights Code because they knew of Officer X’s mental illness and did not investigate the way in which it impacted her conduct as described in Officer Y’s complaint.
When an employee is known to live with a mental illness that affects their mood and interpersonal behaviour, employers must recognize that it could be a factor in complaints they receive about that employee’s conduct. Similarly, an investigator must be conscientious of the fact that an employee’s behaviour may relate to a documented, accommodated mental illness, and take that into consideration when determining both the mandate of the investigation, its conclusions and interview questions. At the same time, it is also important to remember that just because someone has a mental illness does not mean that his or her misconduct is a symptom of it.
Employers should ensure that, when necessary and with the employee’s consent, those who are responsible for conducting investigations are given relevant information about how that employee’s mental illness-related accommodation may play a role in the issue being investigated. Without this knowledge, the investigation itself could violate the Human Rights Code.