Presented by by P.A. Neena Gupta Partner, Waterloo Region

1. Mental Health in the
Workplace:
The Legal Challenge
Presented by P.A. Neena Gupta

2. Mental Health in the Workplace
• Approximately 20% of the adult population has a
mental health problem
• Enormous cost to the economy:
•
•
•
•
loss of productivity
employment income
medical/welfare costs
caregiver costs
2

3. Mental Health in the Workplace
• Workplace stress is a significant factor
• 40% of U.S. workers report their job to very or
extremely stressful
• Blurring of work/private domain through technology
• Downsizing (“doing more with less”)
• Job uncertainty/unemployment/contingent employment
• High rate of change in workplace (technology,
globalization, competition)
3

4. Legal Response is Developing
• Ontario Human Rights Code
• Workplace Safety and Insurance Act
• Occupational Health & Safety Act
• Common-law obligations:
• Implied obligation theory in contracts
• Obligation not to cause foreseeable harm in tort
4

5. Human Rights Code
• Ontario Human Rights Code
• Cannot discriminate on the basis of disability or
“perceived disability”
• Obligation to accommodate disability up to the point of
undue hardship, including:
• Procedural obligation
• Substantive obligation
• Mental illness and clinical depression are disabilities
• “Stress” is not an illness or disability, but a symptom
5

6. Lane v. ADGA Group
• ADGA needs a Quality Assurance Analyst to
supervise 6 to 8 junior technicians
• Work is highly-sensitive (DND)
• Work is highly deadline-oriented and time pressured
• Hires Lane, who has a good track record with similar
companies
6

7. Lane v. ADGA Group
• Lane lies about his absenteeism record in the
application
• Had had several bouts of absences due to bipolar
disorder/schizotypal personality disorder
• Invites his immediate supervisor to intervene if she
observed any inappropriate behaviour/speech
patterns on third day of employment
7

8. Lane v. ADGA Group
• Discloses on Day 5 that he has bipolar disorder with
indication that “abuse by co-workers had been a
trigger in the past”
• Would need to take time off work to ward off fullblown mania from time to time
• Asked her to keep information confidential
• They agree to discuss next Tuesday
8

9. Lane v. ADGA Group
• On the Tuesday, Lane was in pre-manic state
• Perceives a casual joke as a death threat
• Exhibits clear manic symptoms
• Company concerned that Lane unable to meet
attendance and security
• Terminated as probationary employee
9

10. The Tragic Consequences
• Lane goes into full-blown mania and is hospitalized
• Severe depression
• Unable to find work, loses home and family
• Eventually, doctor confirms that he is permanently
disabled
10

11. The Tribunal Case
• ADGA testifies that given his medical condition, he
could not be accommodated
• Unrealistic to have another employee monitor his state
of mania
• Lane had been hired as supervisor of 6 to 10 testers
who themselves were inexperienced
• Schizotypal personality disorder (extreme discomfort
interacting with people; misinterpret situations,
paranoia) not consistent with position
• Stress appeared to be a trigger and job was clearly
stressful (tight deadlines, close to DND testing stage)
11

12. The Decision
• ADGA knew employee had medical issues
• Did not make any inquiries of whether there could
have been an accommodation that would enable
Lane to work
• Acted precipitously in terminating Lane
• Could have put him on leave
• Called wife/doctor as Lane had advised
• Triggered a major manic episode
12

13. The Decision
• Tribunal:
• ADGA had procedural obligation of accommodation
• Should have inquired as to whether realistic to
integrate Lane into the workplace
• Cannot decide until procedural obligations completed
• Should have considered sensitizing “fellow workers
and supervisors” to spotting indicators of hypomanic
state
• Should have avoided terminated precipitously
13

14. Damages
• Lost income for 8 months (capped by Lane’s own
medical condition) – about $35,000
• $35,000 in damages for breach
• $10,000 for mental distress
• Training obligations of all employees
• Significant legal costs
14

15. Moral of the story!
• Procedural obligation to make a genuine effort to
investigate possibility of accommodation necessary
• Need to open up dialogue regarding possible
accommodation
• Possible that Lane wouldn’t have been medically
cleared for job, but ADGA jumped to conclusions
• GET MEDICAL AND LEGAL ADVICE!
15

16. Fair v. Hamilton-Wentworth School
• Sharon Fair started work with the school board on
October 24, 1988
• Promoted to Supervisor, Regulated Substances,
Asbestos in September 1994
• Develops generalized anxiety disorder in fall, 2001
• Receives STD and LTD
16

17. Fair v. Hamilton-Wentworth School
• Independent medical evaluation states:
“Specifically, Ms. Fair would not be able to function in a
job which entailed responsibility for health and safety
issues, nor any duties which would leave her at risk for
personal liability. Outside of these limitations and
restrictions, Ms. Fair is otherwise capable of gainful
employment ….”
• By law, any supervisor has personal liability for
health and safety
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18. Fair v. Hamilton-Wentworth School Board
• Fair testifies she was able to return to supervisory
duties that didn’t involve the special stress of
asbestos removal
• School Board takes position all supervisory positions
have health & safety liability
• School Board did not seek clarification regarding
whether supervisory role in less stressful position
possible
18

19. Fair v. Hamilton-Wentworth School Board
• School Board did not consider placing her in a
position (instead of running job competition)
• Terminated Fair’s employment on the basis of
inability to accommodate disability in a supervisory
position
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20. The Tribunal Decision
• School Board did not make genuine effort to
accommodate
• Failed to seek clarification
• Consider other roles beyond pre-disability role
• Damages:
• June 2003 to date of judgment (March 2013)
• Wages, lost pension, retroactive CPP, medical &
dental
• $30,000 for general damages
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21. The Tribunal Decision
• Reinstatement to a suitable alternative employment
(assuming a six month training period)
• Adjusted seniority
• Should not involve “exposure to personal liability for
health and safety similar to the potential liability
caused by working with asbestos)”
• Award likely worth over $450,000
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22. Lessons learned!
• Be pro-active in considering all options for reintegrating employee in workplace
• Document all discussions with the employee
regarding accommodation
• Seek clarification
• Do not terminate unless you have exhausted
accommodation possibilities
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23. Lessons Learned!
• Regular rules regarding job postings, job
competitions and even seniority may have to be
compromised to accommodate disabled worker
• Remember, employee entitled to adequate
accommodation, not perfect accommodation
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24. Egregious workplace harassment
• Richard Ayotte was a “critical, demanding, loud and
aggressive manager” at Bell Mobility
• Employee, Marta Piresferreifa, was nervous,
sensitive, did not deal well with criticism.
• Extremely critical year-end review – “emotional when
things are not going right … needs to take
ownership”
• Ayotte considering a PIP
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25. Egregious workplace harassment
• Ayotte upset when Piresferreira failed to arrange a
meeting
• Yelled and screamed at her for failure to set up
meeting
• Ayotte arranged meeting with client in minutes
• Piresferreira asked her to read an email on
blackberry; Ayotte didn’t want excuses
• He pushed Piresferreira about a foot away into a
cabinet
• Piresferreira comes into office to tell Ayotte that the
pushing inappropriate
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26. Egregious workplace harassment
• Ayotte does not apologize and tells her “get the hell
out of my office”
• Advises her that PIP will be forthcoming
• Piresferreira complains and is never interviewed –
Bell accepts that event occurred
• Ayotte minimizes the pushing – blames Piresferreira
for provoking him
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27. Egregious workplace harassment
• Bell Mobility does give written reprimand and
requires Ayotte to attend courses (which Ayotte
does); Bell Mobility accepts event occurred
• Requires Ayotte to apologize, but Piresferreira does
not wish to attend meeting
• Richard Ayotte not terminated
• Piresferreira sues
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28. Egregious workplace harassment
“In my view, it is reasonably foreseeable that a person of ordinary
fortitude would suffer serious psychological injury if that person was
regularly yelled and sworn at by her manager/supervisor/boss, was
told by the manager/supervisor/boss that she did not know what she
was doing, was not given the opportunity to explain her actions or
defend herself, was pushed by the manager/supervisor/boss who at
the time was clearly angry and out of control, and was immediately
told that she would be put on probation or issued a PIP.”
Trial Judge Aitken J.
• Trial judge awards approximately $750,000 in damages
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29. Damages at the Court of Appeal
• One year’s pay in the amount of $87,855
• Damages for the manner of dismissal, $45,000
• Damages for the battery (assault) - $15,000
• No damages for “negligent infliction of mental
distress”
• Damages for “intentional” infliction not possible on
facts
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30. Overview
• Occupational Health & Safety Act (Ontario)
• Obligation to provide a “safe” workplace
• Obligation to have policies in place to deal with
bullying and harassment
• Obligation to train managers, supervisors and
employees
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31. Workplace Safety and Insurance Act
• Will cover “mental stress” that is an acute reaction to a
sudden and unexpected traumatic event arising out of
and in the course of his or her employment; chronic
stress not covered
• Does not provide benefits for mental stress caused by
decisions or reactions relating to worker’s employment,
work allocation, discipline or termination
• May change depending on BC court case, which
challenges constitutionality of limited coverage for mental
stress
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32. Conclusion
• Mental health the new frontier
• Racial Discrimination (1960s)
• Gender Discrimination (1970s)
• Rights of the Disabled (1990s)
• Workplace Violence/Domestic Violence (2000s)
• Mental Health (the current frontier)
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33. Thank You
P.A. Neena Gupta
Gowling Lafleur Henderson LLP
Barristers & Solicitors
50 Queen Street North
Suite 1020
Kitchener, ON, N2H 6M2
Direct Tel: 519.575.6910
Direct Fax: 519.571.5001
Email: neena.gupta@gowlings.com
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