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On occasion1, I tune into a longstanding television soap opera called, The Young and the Restless, as a distraction from the issues of everyday life. Most recently however, the soap opera did not act as a distraction, but rather reminded me of the societal challenges faced by employees who suffer from mental illness. As an employment lawyer, of course, this also caused me to give some further consideration to the issue of misconduct in the workplace caused by mental illness and disability.
Before I delve into my thoughts on misconduct in the workplace caused by mental illness or disability let me summarize for you the most recent Young and The Restless plot development that caused me to write this.
One of the main characters, Sharon Newman, has disclosed that she suffers from bipolar disorder. Approximately one year ago, she failed to take her prescribed medication and was suffering from hallucinations, and alternating manic and depressive episodes. Her disorder caused her not to think clearly and she broke into a hospital laboratory and manipulated DNA test results causing her ex-husband, Nicholas Newman, to believe that he had not fathered Summer Newman. The secret has now been revealed to all those affected: Nicholas is actually Summer’s father. Of course, significant drama has ensued. All the characters who discovered Sharon’s behaviour have criticized her and held her accountable for her actions. Sharon Newman has tried to explain that at the time that she engaged in this (and other) misbehaviour it was caused by her bipolar disorder. She begs to be forgiven and for everyone to understand that her mental illness caused her to behave in a way that she normally would not.
In the real world, employer’s grapple quite often with situations where employees engage in work-related misconduct and proceed to discipline accordingly. In instances where employees are terminated for their misconduct there has been scrutiny (particularly in the unionized sector) of such terminations. Employees who have engaged in theft (Ontario Nurses’ Association v. London Health Sciences Centre); attending at the workplace in an impaired state (Canadian Union of Public Employees, Local 5167 v. City of Hamilton); and in uttering death threats (Canadian Union of Public Employees, Local 2330 v. Highland Community Residential Services) have all been terminated initially by the employer for just cause. However, in arbitration proceedings, they have been reinstated into employment. The common thread in each of these cases was that the arbitrator found a causal link or nexus between the disability or addiction that the employee suffered and the misconduct that they engaged in.
Employers therefore need to be mindful of the distinction between “culpable” and “non-culpable” behaviour. Culpable is defined in the Merriam-Webster online dictionary as: “meriting condemnation or blame especially as wrong or harmful”. Non-culpable has the opposite meaning, a synonym for which is “innocent”.
When employees’ behaviour is caused by or linked to an addiction or a disability, their behaviour in the workplace has been found to be non-culpable or innocent thereby meaning that the employer does not have the right to discipline the employee for such behaviour. In fact under Ontario human rights legislation, the employer would have the obligation to accommodate the addiction or disability in the workplace to the point of undue hardship.
Therefore, prior to terminating an employee for just cause or disciplining due to workplace misconduct, employers are well advised to understand whether the behaviour may have been caused by an illness or disability and to obtain medical documentation to substantiate either the existence or absence of such a link. If there is a medical link between behaviour and disability/addiction, then employers should refrain from termination or discipline and instead engage in accommodation.
- And by “occasion” I mean – fairly regularly
About the Author: Patrizia Piccolo is a trusted advisor to senior executives in transition; provides strategic advice and training to both large and small employers and their human resources and management teams; and is entrusted by employers and their counsel to conduct investigations into harassment and other problematic workplace behaviour.