HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lebert Alladice
Applicant
-and-
Honda of Canada Mfg.
Respondent
DECISION
Adjudicator: Mark Hart
Indexed as: Alladice v. Honda of Canada
APPEARANCES BY
Lebert Alladice, Applicant ) On his own behalf
Honda of Canada Mfg., ) Jayson Rider, Counsel
Respondent )
1This is an Application made under s. 53(5) of the Ontario Human Rights Code, (the “Code”), dated January 13, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on January 25, 2008.
2The applicant alleges that he was sent home from work from and after January 17, 2008 because of a perceived mental disability, in violation of ss. 5(1) and 9 of the Code.
3The hearing in this matter was held on November 30, 2009 and February 10 and 26, 2010 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53 applications proceed in a highly expeditious manner. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicant and three respondent witnesses.
Preliminary Issues
4At the outset of the hearing, the respondent requested that I order the applicant to undergo an independent medical examination (“IME”) both for the purpose of determining his competence to participate in this proceeding, where he was unrepresented, and to obtain evidence relevant to the allegations at issue.
5I denied this request, stating that I was not satisfied at this preliminary stage, before I had heard evidence as to the information available to the respondent upon which it based the decision it made and action it took in relation to the applicant, that ordering an IME was necessary in order to ensure a fair hearing in this matter. I further stated that, after hearing this evidence from the parties, in my view I would be in a better position to assess whether the issues in this proceeding can be determined without ordering an IME. The respondent’s request for an IME was not pursued further at the hearing.
6On the question of the applicant’s competence to participate in this proceeding, I stated that the standard rule is that competence is presumed unless there is evidence to the contrary. In this case, I had not heard or received any evidence that would support a determination that the applicant was not competent to participate in this proceeding. In fact, I had received evidence from the applicant that he had participated in legal proceedings in the recent past, and that no issue had been raised as to his competence. As a result, I expressed my view that ordering an IME for the purpose of determining the applicant’s competence would not be appropriate.
Background
7The applicant was employed by the respondent company commencing in 1988, initially as a Production Associate. In September 1990, he was promoted to a Team Leader position, and then in April 1994 was promoted again to the position of Production Coordinator. The respondent states that the applicant continued to perform at an advanced level and in May 2000 he was promoted to Advanced Technical Staff. The respondent company acknowledges that throughout this period, the applicant was a dependable employee who performed his duties in a more than satisfactory manner. The company states that there were no problems with the applicant’s work performance and he was a valued member of the management team.
8In 2004 and 2005, the applicant was off work due to concerns about his mental health, in circumstances that will be discussed in greater detail below. The applicant returned to work on September 19, 2005 on graduated hours and resumed full-time hours on October 10, 2005 working in the Quality Group in Plant 2 Final Assembly. By November 2006, the respondent states that the applicant was greatly improved and was taking on more challenges and asking for more responsibility. As a result, he was assigned to the position of Group Leader in the Maintenance Quality (“MQ”) group.
The Supervisor’s Evidence
9As Group Leader in the MQ group, the applicant reported to the die-cast machining (“DCMC”) Quality Group Leader (the “supervisor”). The supervisor, who testified before me, was unaware of the previous concerns about the applicant’s mental health. It is fair to say from the supervisor’s evidence that he held the applicant in high regard as an employee and had no issues with the applicant’s work performance until the latter part of November 2007. Indeed, on November 23, 2007, the supervisor conducted the applicant’s half year review and gave him a good performance evaluation, with solid work performance notes and no issues relevant to this proceeding.
10From the supervisor’s perspective, things began to change suddenly and dramatically from and after that time. On November 23, 2007, at the line quality start up meeting that morning, the supervisor states that as the Team Leader was reading out his reports, the applicant was questioning everything the Team Leader said and that it really didn’t matter what the Team Leader said, the applicant had a comment for it. The supervisor’s evidence was that this meeting is not to question the Team Leader, but rather to listen and to figure out what needs to happen for that day. After the meeting, the supervisor states that he spoke to the applicant and told him that he had been a little hard on the Team Leader. The supervisor states that this was very unusual behaviour for the applicant, and was the first indication where he started to notice something different. He states that the applicant was very confrontational and argumentative at this meeting, which is not usually how he would be.
11The supervisor states that, later that morning, the Team Leader confronted the applicant about what had happened at the meeting and said that he felt like he was Conrad Black on trial, to which the applicant responded “did I call you a murderer?” in a very argumentative tone.
12On December 10, 2007, an issue arose relating to a clip counter, which was part of a quality control measure to ensure that a certain task in the assembly of a vehicle had been performed. The applicant had been involved in developing a prototype for this device, but budget and expense information was required in order to get a permanent device. This was particularly important at that time, as the company was coming into the new year and was doing business planning. The supervisor states that he asked the applicant to prepare the required information, but the applicant was very confrontational and could not understand why this needed to be done. The supervisor involved the Department Manager to discuss this matter with the applicant, and states that during the discussion, they couldn’t keep the applicant on track and he wouldn’t stay focused or on topic. After the meeting, the Department Manager, who had known the applicant for a much longer period of time than the supervisor, commented that the applicant’s inability to stay on topic and focus was very strange behaviour and the supervisor agreed.
13The supervisor’s evidence is that concerns also had been raised by a number of employees about the applicant being very argumentative and short-tempered over the preceding couple of weeks. As a result, a meeting was convened on December 11, 2007 involving the applicant, his supervisor and the Department Manager. The supervisor’s evidence is that this meeting was held due to noticeable changes in the applicant’s personality and overall behaviour and demeanour: he was very argumentative and confrontational; he wasn’t taking responsibility for his own actions; he was having a hard time staying focused; and he definitely just wasn’t the employee that they had known in the past.
14The supervisor states that at the December 11, 2007 meeting, concerns were raised regarding the applicant’s current state of mind and approach to handling his day-to-day activities, and it was discussed that a number of concerns had been raised about his approach and that he seemed to be very argumentative and short-tempered over the past couple of weeks. The applicant was told that there had been a number of people who had commented on the change. The supervisor states that they asked the applicant what was going on, and the applicant said that nothing had changed. The supervisor states that they explained again that something definitely had been different over the last couple of weeks, and asked if the change was a conscious decision on the applicant’s part. They said that the applicant had been very laid back for the previous year and a half, but now he was on fire and seemed to be going full throttle all the time. The applicant continued to insist that his approach had not changed. In wrap up of the meeting, both the supervisor and the manager reiterated that they both had noticed a change and asked the applicant to go home and think about his approach and they would sit down again the following day and talk about it.
15The supervisor states that he and the manager met with the applicant again on the afternoon of December 12, 2007. The manager said that there had been a significant change in the applicant’s approach and personality, and that he had known the applicant for a long time and this was definitely different behaviour. The applicant replied that he was tired of sitting back and watching things happen that he thought were wrong and that he was going to speak up for those items. The applicant also expressed that he felt that he definitely had more potential and that, based on his experience and potential, he would like to be the Quality Group Leader and Manager, referring to the positions held by the supervisor and the manager. In light of the applicant’s response, it was noted that this was definitely a conscious change on the applicant’s part and that he was speaking up and trying to drive the business; however, the applicant was advised to be mindful of this change because people were perceiving it as hostility and he should re-think his approach if this was a conscious effort. The supervisor states that even with that clarification, the applicant still denied that he had changed and said that he was acting as he always had. So the supervisor felt that there was a mixed message from the applicant: on the one hand he acknowledged that he was tired of sitting back and was speaking up; yet on the other hand he denied that there had been any change.
16After this meeting, the supervisor and the manager had some discussion and agreed that they needed to monitor the applicant’s behaviour over the next few weeks. They decided to keep him in his role, but if things didn’t change, further action would be required and they would have to decide whether to pull him from a supervisory role.
17One of the changes described by the supervisor during this time was the applicant’s limited acceptance of responsibility. The supervisor states that during the discussion at the December 11, 2007 meeting, the applicant said that even though he always reviewed items with his supervisor, he would now review them with the manager as well, stating that he wanted to be involved with both the manager and his supervisor so that he could learn their styles, if his style was no good. The supervisor states that he explained that this was not the case, and he was fine with the applicant’s decision-making ability. In past evaluations, the supervisor had asked the applicant to trust his own judgment and come forward with answers first, which the applicant previously had done. However, after the discussion on December 11, 2007, the supervisor states that the applicant began asking for clarification on everything, big or small, and this was different and not something that they would usually see, especially at an assistant manager level.
18One specific example cited by the supervisor was that he had asked the applicant to follow up on some pending “REACH” items, which basically are submissions from employees to make improvements on process, work area, or safety-related issues. The supervisor states that normally, the applicant would follow up and the supervisor would expect that either they would have no pending items or if they did, the applicant would provide a path forward. However, after the December 11, 2007 meeting, the supervisor states that all the applicant did was pencil on the sheet whether he had seen the item or not, and he would then pass it on to the supervisor. The supervisor states that this was not normal behaviour.
19On December 15, 2007, which was a Saturday production day, the shift was scheduled to start at 8 a.m. The applicant was working as a production group leader that day, but had not been seen by the 8 a.m. start time. As a result, two managers contacted all of the zone team leaders that the applicant was assigned to look after, to confirm that they had enough manpower for start-up conditions. The line then started on time at 8 a.m. Thereafter, the applicant was seen by one of the managers at 8:10 a.m., and was asked why he was late. The supervisor states that the applicant said that he wasn’t late and he began to accuse the manager of starting the line early and would not listen to the manager. The supervisor states that it is not possible for the line to start early at this plant, as there is a pre-programmed system to start the line, and the applicant is aware of this.
20On this same day, another group leader was trying to contact the applicant on his phone for various issues during the shift and the applicant was not responding. This group leader found the applicant and told him that he must have an issue with his phone. In the preceding few days, the supervisor states that he had discussed with the applicant problems with his phone, whereby the applicant could hear others talking but they could not hear him respond. When approached by the group leader on December 15, the supervisor states that the applicant grabbed the group leader’s phone and started alerting his own phone and saying “check 1-2” about 10 times in a row. The supervisor states that the applicant then handed the phone back to the group leader and walked away. The supervisor states that this was not normal activity on the applicant’s part or the expectation of how he ought to respond in such a situation. The supervisor further states that, prior to this time, the applicant had operated his phone properly and had been able to key his mike and be heard by others when he talked.
21The respondent’s plant went into shut-down over the next two weeks, and then resumed operations in January 2008. The supervisor’s evidence is that the applicant’s behaviour continued as it had been exhibited in late November and December 2007.
22For example, in early January 2008, the supervisor states that he had a follow-up discussion with the applicant regarding the MQ drive off procedure. He states that he asked the applicant about the status of this procedure, and the applicant’s reply was that he had reviewed it with management and they were holding it up. The supervisor states that in reality, there were only a couple of minor requests for change and the approval of the procedure had been given. One of the issues was the purchase of a new CAT to push cars off the line if they wouldn’t start, which the supervisor states was the applicant’s responsibility. The supervisor states that normally in the past, the applicant would have taken care of this issue, however on this occasion, the applicant’s tone of voice and posture were definitely confrontational and were not how the applicant would normally handle himself.
23On January 9, 2008, there was an automatic transmission meeting that was being led by the Vehicle Quality department, which is a different department than Manufacturing Quality, so the meeting was chaired by someone from a different department. The supervisor states that the applicant began to take charge of the meeting and was not listening to details. He was asking questions repeatedly and was not making sense during discussions. He could not stay focused on the discussion and was making comments like, “I know you guys are in charge but . . .”, or “I know I shouldn’t say, but . . . .” The supervisor states that during all this time the applicant was pacing around and making hand gestures and was very vocal. The supervisor described the applicant’s behaviour at this meeting as “grandstanding”. The supervisor states that comments were made after the meeting about the applicant’s behaviour by Vehicle Quality management, and others told the supervisor that they had made comments to Vehicle Quality management and they wondered about the applicant’s behaviour.
24On January 10, 2008, the assembly department had a car come off its dolly on one of the lines. The incident was reviewed, and the root cause was determined to be that an assembly associate had not attached the door strap to the sash. The supervisor states that two employees who had been involved in the review encountered the applicant in the cafeteria later that day. The supervisor states that the applicant started to argue what the root cause was, saying that the sash had never been installed by the welding department and that was why the strap had not been installed by the assembly associate. The supervisor states that the applicant continued arguing despite being told that there was a report with a picture of the sash as installed on this vehicle. This is cited as a further example of the applicant’s argumentative and confrontational behaviour.
25A further example cited by the supervisor of this kind of behaviour on the applicant’s part related to an incident when a Manufacturing Quality team leader came to talk to the applicant and tapped the applicant on the shoulder to get his attention. The supervisor states that the applicant said, “what was that?”, to which the team leader replied, “what?” The supervisor states that at this point, the applicant said, “you touched my arm, you’ve been told”.
26By January 14, 2008, the supervisor states that they had not seen a change in the applicant’s behaviour since the December 12, 2007 meeting, so he and another manager started putting together a timeline of events and made observations regarding how they thought the applicant’s behaviour had changed. The supervisor states that there had been a noticeable change in the applicant’s personality since December 2007: he was very argumentative about everything; he was agitated; he was questioning all direction; he couldn’t keep conversations on track; he was blaming other management for company shortfalls; there was limited acceptance of responsibility; he was repeating statements made by management as a way of belittling their opinions; he was conveying a sense of grandeur; he was reinforcing his goal to be strong, powerful and advance in the department; and he was confrontational.
27The supervisor states that associates had reported that they were not comfortable approaching the applicant to discuss items of any kind inside or outside the department, and that numerous associates were questioning the applicant’s behaviour and were concerned about the applicant’s health and their safety around him. The supervisor states that at this time, he had noted that the applicant had wide glazed eyes and was staring into space, and he had noticed weight loss. The supervisor further noted that the applicant was not accepting or recognizing these changes in his behaviour, to the extent that he had denied any change in the December meetings.
28The information that had been compiled was presented at a meeting held on January 17, 2008 and attended by the supervisor, other management representatives and the Medical Director in order to determine the appropriate direction to go with the applicant.
The Medical Director’s Evidence
29The respondent company’s Medical Director had been engaged in a contractual relationship with the respondent since February 2000. He has received advanced training in occupational medicine over the past 15 years through either the Canadian or American Board of Occupational Medicine, and has been a speaker at several conferences in this area. He dealt with mental health issues fairly extensively in his private practice prior to his engagement with the respondent company, and continues to deal with mental health issues and receive training on such issues in his current role.
30The Medical Director attended the January 17, 2008 meeting, and recalls that there was a concern about the applicant’s performance and behaviour in the workplace and that management was struggling to understand how to proceed from that point on. He states that when management presented the behaviours and issues they were having with the applicant, for him it was very reminiscent of the situation that the applicant had gone through in 2005. The Medical Director states that it was his view that the applicant had likely relapsed in his condition and was likely in an unstable medical state at that point, and he shared that view at the meeting.
31The Medical Director states that his recommendations basically mirrored the same recommendations he had made in 2005 when he met with the applicant, which was that the applicant likely had experienced a relapse or had gone off his medication and that he was not fit for work without clearance from his psychiatrist.
32The Medical Director states that his assessment that the applicant was not fit for work was based on the history that was provided to him at the January 17, 2008 meeting and his awareness of the applicant’s prior medical history dating back to the applicant’s hospitalizations in 2004 and workplace issues in 2004 and 2005. During this period, the applicant had been diagnosed with a serious mental health issue for which he received treatment, and eventually was able to return to the workplace.
33The Medical Director states that when he was approached with a symptom complex that was a mirror of the symptom complex he had seen before in 2005, his view was that the applicant had either relapsed or gone off his medication, which is common in the context of the mental health issue with which the applicant had been diagnosed. As a result, the Medical Director felt that it was critical for the applicant to be allowed time off work to seek the appropriate medical assistance.
34The Medical Director states that one of the key things in any workplace is people’s ability to work interdependently or together. As part of the applicant’s illness, there appeared to be issues of delusional thinking, defiance, and refusal to accept that there was conflict with people around him, which then compromised his ability to work with other people. The Medical Director states that this behaviour and the resulting impairment of occupational functioning is one of the recognized symptoms of the mental health issue with which the applicant had been diagnosed.
35The Medical Director states that his approach to evaluating fitness to work is to assess whether the person has a stable or an unstable health situation. As an example, the Medical Director cited a situation where a manager is having chest pain. Whether or not it would be appropriate to put this individual in a less stressful job depends upon whether or not the person’s medical situation is stable or unstable, which cannot be assessed without receiving clarification from the person’s treating physician. With the applicant, the Medical Director felt that he had an unstable medical condition, so he felt that it was best to make sure that he was seeking treatment and that the company had some input from his psychiatrist. The Medical Director states that what he needed was clarification from the applicant’s psychiatrist to know that the applicant was in stable condition and able to work in the workplace.
36The applicant has raised an issue in this proceeding that he was not seen by the Medical Director prior to being assessed not fit to work. The Medical Director states that typically the applicant has not wanted to meet with him after their first meeting in 2005, when he met with the applicant for two to three hours and where the applicant engaged in a disagreement over the facts as reported by the applicant’s managers. The Medical Director states that because of the applicant’s illness, the discussion at this meeting went around in circles because the applicant’s illness caused him to believe in the truth of what he was saying. As a result, the Medical Director states that when he heard similar circumstances in 2008, he felt that he needed assurance from the applicant’s psychiatrist that his condition was stable so that he could know whether management could have a logical and productive discussion with the applicant about workplace issues.
The January 2008 Meetings with the Applicant
37At the management meeting with the Medical Director on January 17, 2008, a number of options were discussed in terms of how to deal with the applicant’s situation, including the possibility of removing him from his supervisory role and assigning him to a different role. As a result of the meeting and in light of the assessment of the Medical Director, the decision was made that medical information was required from the applicant’s treating psychiatrist regarding the applicant’s fitness for work and to assess whether the company was dealing with a medical issue or a performance issue. It was decided not to try to put the applicant into a new role at this time due to concerns about whether he would accept a new role and being relieved of his supervisory responsibilities, and due to the fact that even in the new role that was contemplated, interaction with other employees would still be required. Instead, the decision was made to put the applicant off work on short-term disability at 100% of his pay pending receipt of medical information regarding his fitness to work.
38Accordingly, on the afternoon of January 17, 2008, the supervisor and a human resources representative met with the applicant for the purpose of informing him that his behaviour had suddenly changed and that management was concerned that potentially his medical condition had relapsed. The applicant was informed that he would be placed on short-term disability and that medical information was required from his physicians. At this meeting, the applicant expressed his feeling that he was not ill. Management shared in general terms the kinds of changes in the applicant’s behaviour that had been observed, and the applicant questioned management on providing examples of his behaviours. Management were reluctant to engage in a detailed discussion of the workplace incidents, and instead said that this information would be shared with the applicant’s psychiatrist. The respondent’s evidence is that the applicant was told that if he went to his treating physician and everything was fine, then the company would address the situation in a different manner as a performance issue.
39The respondent’s evidence is that the applicant exhibited further examples of unusual behaviour at the January 17, 2008 meeting. He did not accept that there had been changes in his behaviour as described by management and continued to insist on receiving specific examples of these changes. He requested that his documents be locked down, so that he could prove that there was no performance issue. The respondent’s evidence is that the applicant named some of the company’s senior executives, and said that he was like them and should be treated with the same respect. He also requested that a security guard be called to the meeting to witness that he was being asked to leave the premises. The human resources representative states that he had attended a meeting with the applicant in 2005 when he was experiencing mental health issues, and that the applicant’s behaviour at the January 17, 2008 meeting was similar to what he had exhibited in 2005.
40At the January 17, 2008 meeting, the applicant was told that the company would follow up with a letter to confirm what had been stated at the meeting. This letter was prepared and is dated January 21, 2008. This letter documents that management met with the applicant to discuss some serious concerns regarding the applicant’s recent inappropriate behaviour and interaction with other associates and supervisors, and recorded the applicant’s belief that he was just doing his job and that there was nothing wrong with his behaviour. The letter documents the prior meetings with the applicant in December 2007 where the noticeable change in the applicant’s behaviour and approach to others had been discussed, and noted that there had been no improvement since then and that the applicant continued to act in an inappropriate manner.
41The letter provided the following examples of the applicant’s behaviour: questioning all direction given by management; conveying a sense of grandeur; limited acceptance of responsibility; repeating statements made by management as a way of belittling their opinions; difficulty staying focused and on topic; assigning blame to other management members for items not being completed; and very confrontational and argumentative in dealings with others. The letter notes that this behaviour is very similar to the behaviour exhibited by the applicant in 2005, when he was diagnosed with a particular health condition. The letter states that management’s concerns about the applicant’s behaviour had been shared with the Medical Director, and that his medical opinion was that the applicant’s behaviour was likely attributable to this medical condition and that the applicant must be reviewed by his health care professionals for evaluation and appropriate treatment.
42The letter confirms that the applicant was instructed to “immediately arrange an appointment with his specialists and treating family physician (preferably same health care professionals that managed your previous condition)” and to have short-term disability paperwork completed and forwarded to the respondent and/or its insurer within 10 business days. The applicant also was instructed to “attend all appointments, participate and cooperate in whatever treatment is deemed necessary by [his] health care professionals”, and was informed that if he failed to attend his appointments or cooperate fully, his short-term disability benefits would cease. The applicant was told that he would not be permitted to return to work until the company was satisfied that he had had the appropriate treatment and was continuing to follow up with any treatment that had been recommended.
43Before this letter could be sent to him, the applicant appeared at the company’s premises on the morning of January 21, 2008. At this time, he provided a letter from his family doctor dated January 18, 2008 simply stating that the applicant would be attending for a complete physical on January 29, 2008. The applicant’s evidence is that this physical was for his own purposes, and was unrelated to his fitness to work. The applicant also returned the short-term disability paperwork which he had completed himself, stating that no illness or injury had occurred and there were no symptoms preventing him from working and indicating that he would seek legal action if his pay was decreased or if his employment was terminated.
44Management met with the applicant on January 21, 2008 to receive the material provided by the applicant and to provide him with a copy of the company’s January 21, 2008 letter and the company’s notes of the January 17, 2008 meeting with the applicant, as the applicant had requested.
45There is no dispute that the applicant did not provide any medical information to the respondent regarding his fitness to return to work. He commenced his human rights complaint on January 25, 2008.
The Applicant’s Evidence
46The applicant provided evidence in response to each of the incidents about which the supervisor testified. In some instances, such as his response to being tapped on the shoulder and the exchange about treating a team leader like Conrad Black, he denied that the incident had ever occurred. The applicant also denies having any discussion with the manager on December 15, 2007 about being late or about the line having been started early, and denies making any reference to senior executives at the meeting on January 17, 2008.
47In some instances, the applicant denied certain specific behaviours, while acknowledging that if these behaviours had been exhibited, they would have been ignorant, rude or belligerent. For example, while he acknowledges that he may have repeated some portions of direction given to him by his supervisor or other managers for the purpose of confirming this direction or getting clarification, he denies simply repeating what was said to him “like a parakeet” and stated that such behaviour would be ignorant and rude. Similarly, with regard to the issue of his cellphone, he acknowledges being approached by the other group leader about his phone and that he checked his phone, but denies repeating “check 1-2” ten times and then just walking away, which the applicant states also would have been ignorant and belligerent.
48In other instances, he acknowledged that the incident had occurred but justified his actions as being appropriate. For example, on the clip counter issue, the applicant states that he required input from the manufacturing group in order to prepare the material requested by his supervisor and this took some time to receive. The applicant states that he explained this to the supervisor, and denies that he expressed any resistance to preparing the requested material.
49With regard to the line quality meeting on November 23, 2007, the applicant acknowledges that he asked for clarification on a number of items that affected his group, but states that this was not out of the norm. He recalls being approached by his supervisor after the meeting and told that he had been a little hard on the team leader, but states that in his view his approach was no different than in previous meetings where he required and sought clarification.
50With regard to the Vehicle Quality meeting on January 9, 2008, the applicant states that it was his report being presented at the meeting and he acknowledges interjecting at the meeting with his comments, but states that these interjections were concise and appropriate. He denies pacing or being agitated or hostile during this meeting.
51With regard to the incident on January 10, 2008 where the vehicle came off the line, the applicant states that he discussed this incident while he was just shooting the breeze with his co-workers on a break in the cafeteria. He states that he didn’t backtalk to them or give them any grief, and had no discussion about any views he may have had regarding the root cause of this incident as he had not been involved in the investigation.
52In other instances, the applicant denies that there was any change in his approach or behaviour during the period in question. For example, with regard to the REACH items, the applicant states that he continued to deal with these items in the same way as he had before.
53With regard to the development of the drive off procedure, the applicant’s evidence is that the approval of this procedure was being held up by the manager, who was required to sign off on the purchase of the CAT, and the applicant acknowledges making this statement to his supervisor. However, he states that his approach in dealing with this issue was no different than how he had dealt with similar issues in the past.
54There are three areas of the applicant’s evidence that are of particular concern to me. First, the applicant adamantly denies that any meetings took place on December 11 and 12, 2007 with his supervisor and the manager, and he further denies that there were any meetings to discuss any change in his behaviour or performance concerns prior to January 17, 2008. I simply cannot accept this evidence. Not only did I hear direct and detailed evidence from the applicant’s supervisor about these meetings, but the supervisor also kept detailed and meticulous contemporaneous notes of these meetings which were tendered into evidence before me, including a record of the precise time and location for each meeting, who attended and precise details of the discussion. On the basis of this evidence, I find that these meetings did occur as stated by the supervisor in his evidence, and I accept that issues regarding the noticed change in the applicant’s behaviour were raised and addressed at these meetings in the manner described in the supervisor’s evidence.
55Second, also tendered into evidence before me were medical reports prepared by the applicant’s then treating psychiatrist dated September 29, 2004 and June 6, 2005 which had been requested by and provided to the respondent company’s disability insurer. These reports are extensive and detailed and provide a diagnosis of a serious mental health issue and a detailed discussion of the applicant’s medical history as it relates to and supports this diagnosis. The applicant’s evidence before me is that he has never suffered from a mental illness, that much of the information set out in these medical reports and attributed to him is false, and that his treating psychiatrist either misinterpreted, misconstrued or fabricated what the applicant said. While the treating psychiatrist did not testify before me and while I appreciate that there may be occasions when a psychiatrist misdiagnoses a patient, I cannot accept the applicant’s evidence that this doctor fabricated or misinterpreted what the applicant said to him on such a scale of magnitude as is suggested by the applicant.
56Third, I am concerned about the applicant’s evidence regarding his visits to his family doctor on January 18, 2008 and January 29, 2008. The respondent’s Medical Director contacted the applicant’s family doctor following each of these visits, and made contemporaneous notes of his discussions with the family doctor. The Medical Director’s evidence was that neither he nor the applicant’s family doctor required the applicant’s express consent to have this discussion, because they were both considered part of the applicant’s “circle of care”. The Medical Director’s notes record the family doctor as telling the applicant on January 18, 2008 that the family doctor did not think the applicant was healthy and that the doctor thought he had some mental health issues that needed to be followed up with his psychiatrist. While the applicant acknowledges that his family doctor said that he should go ahead and schedule an appointment with his psychiatrist if he felt he needed to, the family doctor did not say that he felt there were mental health issues that required follow-up with the psychiatrist.
57With regard to the January 29, 2008 appointment, the Medical Director’s notes of his discussion with the family doctor record this doctor as saying that the applicant would not accept that he had any mental health issues and would not accept a referral from the family doctor to his psychiatrist. The applicant’s evidence is that there was no discussion of mental health issues at the January 29, 2008 appointment and that nothing of this sort happened.
58While the applicant’s family doctor did not testify before me, I have contemporaneous notes made by the Medical Director of his discussions with the family doctor within days of each of these two appointments. While this is hearsay evidence, I do have the discretion to admit such evidence if I believe it to be reliable. In this instance, I have no reservation in accepting the reliability of statements by the applicant’s family doctor, which were made to another doctor (the Medical Director) within a very short time after each appointment, and which were recorded by the Medical Director at the time the statements were made. I accept the Medical Director’s evidence as supported by his contemporaneous notes that these statements were made to him by the applicant’s family doctor, and I accept and find that mental health issues and a referral to the psychiatrist were discussed with the applicant at both of his appointments with his family doctor.
59In my view, these three areas of concern about the applicant’s evidence are very serious, and call into question the credibility and reliability of his evidence as a whole. Taken together, these are not areas where the applicant simply could have forgotten or misremembered past events. These are all critical areas of evidence that bear directly on the issues before me. It may be that the applicant honestly believes the truth of the evidence he gave in these three areas. He certainly gave every indication before me that he honestly believed what he was saying to me. But I find that his evidence in these critical areas is not in accord with the preponderance of all of the evidence before me and is not consistent with the surrounding probabilities.
Subsequent Events
60The complaint before me was filed on January 25, 2008, and addresses only the issue of the applicant being required to go off work until he met with his psychiatrist and complied with any recommended treatment plan. As an application under s. 53 of the Code is required to be based on the subject-matter of the complaint as filed with the Commission, this is the only issue before me in terms of assessing and determining whether the applicant’s rights under the Code were violated.
61Nonetheless, I heard evidence regarding subsequent events and all parties agreed that I could take these subsequent events into account in relation to any remedy I may award.
62The respondent followed up with the applicant by letter dated February 1, 2008, and stated that the applicant would not be allowed to return to work until he had met with his psychiatrist and been given the appropriate clearance to return.
63On February 7, 2008, the respondent wrote again to the applicant to advise him that unless it received written confirmation of an appointment with his treating psychiatrist by February 15, 2008, the applicant’s short-term disability benefits would be discontinued. This is the same process that the respondent company followed in 2005, when the applicant ultimately did obtain psychiatric treatment.
64On February 19, 2008, the company wrote to the applicant again to state that it had not received the required confirmation, and so was stopping the applicant’s pay effective February 15, 2008. The applicant was told that as soon as he complied with the company’s request, his pay would be reinstated.
65Over the course of the next several months, efforts were made by the company to try to persuade the applicant to comply with its request, including retaining a third party doctor to contact the applicant directly and talk to him. These efforts were not successful.
66On September 10, 2008, the respondent wrote to the applicant to offer him one last opportunity to meet with a specialist and discuss his current medical condition. The company had arranged for an appointment with a particular psychiatrist on a specific date, but invited the applicant to advise if he wanted to see a psychiatrist of his own choosing provided that the company received confirmation of an appointment date no later than three weeks after the date of the arranged appointment. The letter stated that if the applicant again refused to see anyone, the company would have no choice but to terminate his employment immediately. The applicant was advised that he was required to contact the signatory of the letter by 4:00 p.m. on Monday, September 15, 2008, failing which his employment would be terminated without further notice.
67The applicant did not respond to or comply with the requirements of the company’s letter, and accordingly his employment was terminated effective September 16, 2008.
Analysis and Decision
68As stated above, the only issue before me is whether the applicant’s rights under the Code were violated when he was sent home on January 17, 2008 and required to obtain medical clearance from his psychiatrist before returning to work. While the applicant denies that he has any mental health issue, the definition of “disability” under the Code includes a disability that an applicant either has or is perceived to have. In any event, on the basis of the medical evidence before me, I find that the applicant does have a diagnosed mental disability.
69In this case, there is no question that the applicant was sent home on January 17, 2008 because of a mental disability or perceived mental disability. The evidence from the respondent makes clear that the applicant’s supervisor, manager and others noticed a marked change in the applicant’s behaviour in a short period of time, took steps to raise this issue within the company primarily based upon a prior disability-related issue from 2004 and 2005, and made a decision in consultation with the company’s Medical Director to send the applicant home until he had obtained clearance from his psychiatrist expressly out of concern that he had relapsed in his mental disability and/or had stopped taking medication.
70In the specific circumstances of this case, this is not, in my view, a sufficient basis in and of itself to support a finding of a violation of the Code for several reasons. First, the respondent had a justified basis for concern about the applicant’s sudden change in behaviour and that potentially this was related to his disability. The supervisor provided well-documented evidence of incidents that he either had observed directly or that had been reported to him, and I accept the evidence of the Medical Director that the behaviours identified by the supervisor are similar to those exhibited by the applicant in 2004 and 2005 when he was required to be off work because of this disability and also were consistent with the mental health issue as diagnosed by the applicant’s treating psychiatrist at the time.
71I understand that the applicant disputes the evidence regarding his changed behaviour, and I already have expressed my concerns regarding the credibility and reliability of the applicant’s evidence. I accept the supervisor’s evidence that these incidents either occurred as he observed or were reported to him as related in his evidence. While it is true that the applicant was not confronted regarding each incident and afforded an opportunity to provide his side of the story prior to being sent home, I have found that there were two meetings in December 2007 at which the change in his behaviour was raised and discussed and at which he denied any change. I further accept the evidence of the Medical Director that this denial is consistent with the applicant’s response when similar incidents were raised with him in 2005 and is consistent with his diagnosed mental illness.
72Second, I find that the Medical Director’s assessment that the applicant was in an unstable condition and not fit for work was based upon the observed and reported behaviours that were shared with him, which were consistent with the behaviours exhibited by the applicant during his prior period of illness and also were consistent with the symptoms of the applicant’s diagnosed disability. I acknowledge the applicant’s concern that the Medical Director did not meet with him personally as part of making this assessment. However, as stated above, this was based upon the Medical Director’s prior experience of meeting with the applicant in the context of his illness and in the context of the denial of changed behaviour as exhibited by the applicant in 2005 and again in December 2007, which I accept and find is one of the symptoms of the applicant’s illness.
73It is important also to recognize the surrounding context of the decision made by the respondent company on the advice of its Medical Director and what was being required of the applicant. Neither the Medical Director nor the respondent company were making a final or determinative assessment that the applicant was unfit for work due to his disability. Rather, this assessment was provisional pending consultation by the applicant with his treating psychiatrist and that doctor’s assessment as to the applicant’s fitness to work, and the applicant was to be provided with full pay pending this assessment. I accept the respondent’s evidence and find that, had the applicant provided an assessment by his treating psychiatrist that he was fit to work, then he would have been allowed to return to work and any conduct or behaviour issues would have been addressed as performance concerns.
74At the hearing, I raised with the respondent whether it had considered the possibility of keeping the applicant at work, though perhaps in another role, and addressing the conduct and behaviour issues as performance concerns. The Medical Director’s response, which I accept, is that in light of the specific nature and symptoms of the applicant’s disability, it would not be appropriate to treat his conduct and behaviour as a performance issue if it was related to his disability, as the nature of the applicant’s disability affects his thought processes in a way that would make it inappropriate to hold him accountable or responsible for his actions through performance management or potentially a disciplinary process. In these circumstances, I find that it was not unreasonable for the respondent company first to require clarification from the applicant’s treating psychiatrist as to whether the applicant’s disability was affecting his ability to perform his workplace responsibilities.
75Third, in my view, the respondent company gave appropriate consideration to health and safety issues potentially arising out of this situation. I accept the applicant’s evidence and find that he did not threaten anyone and was not violent. However, in the context of the applicant’s diagnosed disability, the previous symptoms of that diagnosed disability as reported to the respondent by his treating psychiatrist in 2004 and 2005, and the Medical Director’s assessment that the applicant’s condition was unstable at the time he was sent home on January 17, 2008, the course that the manifestation of the applicant’s disability might take was unpredictable. Once again, in this context, it was not unreasonable for the respondent to request an assessment by the applicant’s treating psychiatrist and to send the applicant home pending receipt of that assessment.
76In all of these circumstances, I find that the applicant’s rights under s. 5(1) of the Code were not violated by the respondent by sending him home on January 17, 2008 and requiring an assessment by his treating psychiatrist. I further find that the respondent complied with any duty to accommodate the applicant’s disability that may have arisen in these circumstances by sending the applicant home with full pay pending receipt of this assessment.
77It was clear that the representatives of the respondent company who appeared before me held the applicant in high regard and view his situation with compassion. It is indeed regrettable that this situation ultimately resulted in the termination of the applicant’s employment, which may be attributable to his disability. However, as sympathetic as I may be to the applicant’s circumstances, this does not change my view that his rights under the Code were not infringed. I do sincerely wish the applicant well, and hope that he seeks out any appropriate treatment that he may require.
78For all these reasons, the Application is dismissed.
Dated at Toronto, this 2nd day of July, 2010.
Mark Hart
Vice-chair