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October 15, 2014
Workplace safety can trump the need to accommodate disabilities

A Nova Scotia teacher found that an employer’s need to accommodate a disability is not unlimited, particularly if accommodation could affect the safety of others in the
work place.

The case involved a teacher with a 15-year record of good work experience.  However, in the summer of 2008, he began to correspond with a grade 10 student.  His email correspondence included messages urging her to kill her parents and to participate in other erratic behaviours.

The parents found the messages and reported them to the school’s principal.  The day after being confronted by the school officials, the teacher called in sick and went to his family physician, who then referred him to a psychiatrist.  In the meantime, his employment was terminated.

The psychiatrist diagnosed him with bipolar disorder with periods of hypomania involving drastic mood changes.

The case then went to arbitration.

In supporting his case, the teacher’s union took the position that the emails were a manifestation of untreated bipolar disorder and that he did not have control over his actions at the time.  

To support its argument, the union produced an independent psychiatric report stating that he could return to work in the classroom, provided his mood was subject to monitoring.  The report contained a number of warning signs that would indicate the onset of hypomania and suggested specific actions the principal could take to monitor the teacher for those signs, including measuring the teacher’s blood levels and having the principal and other teachers observe him constantly.

The arbitrator ruled in favour of the employer.  In reviewing the case, the arbitrator ruled that the teacher was guilty because he knew his conduct was wrong and therefore, could be terminated with cause.  Alternatively, the arbitrator said, if the teacher’s judgement was impaired due to his disability, the school board still could not be expected to provide enough supervision to constantly monitor his behaviour.

The teacher appealled the decision but the Appeal Board agreed with the original decision, adding that requiring the school board to accommodate the teacher would “constitute undue hardship as it would be impractical to have the principal monitor him.”   In addition, it said, since the email exchange with the student took place in the summer, when no supervision would be available, reinstating him to his position would pose an unacceptable risk to students.

He appealled again and the case ultimately was heard by the Supreme Court of Nova Scotia and the Nova Scotia Court of Appeal.  Both courts upheld the employer’s decision to terminate the teacher’s services.  Specifically, the courts noted that accommodation measures proposed by the independent psychiatrist, such as constant monitoring, were impractical.  

In addition, the courts said, the teacher’s abuse of his authority, the need for safe schools and the possible impact if other students were drawn into similar scenarios presented risk levels “sufficient to establish undue hardship” for the employer.

While this case illustrates the potential difficulties of addressing disabilities involving mental illnesses, it also shows that while the need to accommodate an individual’s disability is a primary consideration, the safety of others who share or participate in the workplace must also be considered when managing or adjudicating a mental illness.

In certain circumstances, these factors can override an employer’s need to accommodate a

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