In the recent decision of Cape Breton (Regional Municipality) v CUPE, Local 933, 2014 NSSC 97, the Nova Scotia Supreme Court upheld an arbitrator’s decision to conditionally reinstate an employee who had been terminated due to excessive absenteeism. The employer was not aware that the employee suffered from depression at the time of the termination.

The employee was diagnosed with cancer in 2006 and took a 23 month leave. During that time, she was also diagnosed with depression. When she returned to work in 2008, the employer was unaware of any specific medical condition or workplace limitations that would require accommodation. Even after returning to work the employee was frequently absent. While she provided reasons for the absences, she never mentioned fatigue or depression. After several discussions and warnings, she was terminated in January 2011. The Union grieved on her behalf.

The Arbitrator who heard the grievance concluded that the termination was justified based on the information the employer had at the time, but ordered the grievor be reinstated conditional on the employer reviewing their workplace practices to determine if accommodation was possible. The Arbitrator concluded that had the employer been aware of the employee’s condition they would have been obligated to accommodate her to the point of undue hardship and that they were unaware of the condition because the grievor herself was unaware of the impact of her condition, which in itself was a symptom of her depression.

In reviewing the Arbitrator’s decision, the Court examined the reasonableness of admitting “after-acquired” evidence when making a determination on the appropriateness of dismissal. The Court concluded that it was reasonable for the Arbitrator to consider this evidence because it would help determine the reasonableness and appropriateness of the termination in the circumstances. In considering this evidence, the reviewing Court concluded that the Arbitrator’s remedy of conditional reinstatement was reasonable. The Court agreed with the Arbitrator that requiring the employee to have told the employer that she needed accommodation would fail to recognize the nature of depression.

This case illustrates the challenges facing employers in managing mental health issues in the workplace. It may be necessary for employers to be proactive in recognizing situations where an employee may be in a vulnerable situation that could entail mental health issues such as depression. The fact that an employee does not come forward with such problems will not always be sufficient to meet the requirements of human rights accommodation. Where such issues exist, accommodation to the point of undue hardship will be required before termination for excessive absenteeism will be justified. At some point a long period of irregular attendance may well lead to frustration of employment, giving rise to just cause for termination. However, this is a difficult threshold to meet and will not alleviate the duty to accommodate on employers where mental health issues impede regular attendance.