It is trite law that employers cannot discriminate against employees based on mental disabilities. The broad interpretation that courts and arbitration boards frequently apply to human rights laws, however, often makes it difficult to know where the boundaries of ‘mental disability’ lie. In a recent arbitration decision out of Ontario, Windsor (City) and WPFFA (Elliot), the arbitrator found that an employee’s mood problems and inability to deal with stress were not classifiable as mental disorders. He did not qualify as having a mental health disability.

Background

Elliot worked as a firefighter for the City of Windsor for nearly ten years. The shift schedule for firefighters consisted of rotating, 24-hour shifts. Good attendance by firefighters was vital to the City. Specified numbers of firefighters are required to operate the fire equipment.

In the years leading up to his dismissal, Elliot had been disciplined a number of times for missing scheduled shifts. Discipline was on an escalating scale. Just prior to his termination, he had been suspended without pay for four shifts. He was warned that any future absences might result in dismissal. 

Elliot also took a two-month medical leave for personal reasons largely related to his marriage. He saw a psychologist who described Elliot as having a temporary “adjustment disorder with related depressed mood & mixed anxiety stemming from a series of difficulties (financial, marital breakdown, job pressures, community difficulties).” This diagnosis was never disclosed to the City. 

About a year after his medical leave, Elliot missed 5 consecutive shifts. The Employer terminated him for cause. 

Arbitration Decision

Relying heavily on Elliot’s psychological treatment, the Union grieved Elliot`s dismissal. It alleged that he suffered from a mental disability as defined by the Human Rights Code.  Elliot`s psychologist gave evidence that during times of stress, Elliot`s thinking `narrowed`, and he obsessed about the cause of stress while remaining oblivious to consequences of his actions. He labelled Elliot’s problem as “dissociation,” which he distinguished from a diagnosis of “dissociative identity disorder.” He also noted that Elliot had “mood-related problems”.

The arbitrator had to decide whether Elliot`s condition was a “mental disorder,” and thus qualified as a mental disability under the Code. He noted that not all mental disorders are well known or understood. He also noted that certain people respond better to stress than others. 

Despite this, the arbitrator found that Elliot had no mental disorder. He based this largely on the lack of diagnosis at the time of termination. He dismissed the Union’s arguments based on behaviour. In short, although Elliot had not behaved in a manner that most other firefighters (or most other employees) acted, and although a psychologist placed him on the ‘psychotic’ end of a neurotic-psychotic spectrum in dealing with his anger and stress, these were particular behaviours and not a substitute for a diagnosis of a mental disorder.  The termination was therefore justified.

Lesson for Employers

This case clarifies what qualifies as a mental disability under the Code. Despite the presence of behaviours that could indicate mental health issues, the arbitrator relied on a lack of official diagnosis to uphold termination. The case illustrates that not all employees who miss work due to stress have a mental disorder. Nor does poor anger-management and stress-management equate, without more, to a mental disability.

It should also be noted that the arbitrator placed some weight on the timing with which the mental disorder argument was brought. The Union first raised the issue after termination.  There had previously been multiple disciplinary proceeding. This case suggests that in instances where a chronically absent employee alleges discrimination due to a mental disorder, decision-makers will be less likely to give credence to such claims if the employee failed to raise disability concerns prior to termination.