Canadian Employment Law Today

Canadian HR Reporter, 2019 Accommodation of difficult employee a hard pill to swallow Harassment complaints, poor interpersonal relationships made return-to- work program challenging, but progress was being made before dismissal BY JEFFREY R. SMITH A Saskatchewan health author- ity felt its attempts to accommo- date a worker coming back from medical leave had reached the end of the line, but there was still more it could have done to try to accommodate the worker, an arbitration panel has ruled. Cheryl McLean was a staff pharmacist at Melfort Union Hospital in Melfort, Sask. In July 1989, she was hired out of university by the Kelsey Trail Regional Health Author- ity. In December 2017, Kelsey Trail and 11 other regional health authorities were merged into the Saskatchewan Health Au- thority, with McLean staying in the staff pharmacist role. In late 2013, McLean started working under a new manager who had recently joined the authority. She felt the new man- ager ignored her and hurt her ability to do her job. As a result, their working relation- ship was difficult. Around the same time, McLean started having problems with the hospital's admin- istrator as well, stemming from McLean's filing of two discrepancy reports about nursing staff turning the hospital pharma- cy's security lights off at night and entering it to obtain medications. One morning in November 2013, the administrator came to the pharmacy, threw the reports on the table and told McLean: "is has to stop." McLean then filed an occupational health and safety incident report accusing the administrator of verbal abuse causing her emotional stress. A couple of weeks later, McLean pro- vided a doctor's note saying she would be off work for medical reasons for two months until Feb. 5, 2014. e return date was later extended and McLean filed a workers' compensation claim for a mental health injury stemming from the Nov. 21, 2013 incident. McLean remained off work, using 119 sick leave days before applying for disabil- ity benefits on March 22, 2014. While she was on medical leave, she submitted mul- tiple complaints about her workplace and certain hospital employees, including: • A risk management report objecting to new pharmacy processes that she and a co-worker believed compromised pa- tient safety and didn't follow pharmacy standards of practice, submitted March 20, 2014; • A report alleging professional incompe- tence and negligence against her man- ager, submitted June 17, 2014; • A harassment complaint claiming bullying and harassment by her manager, his man- ager and several members of the nursing and support staff since 2012 and the health authority for providing a work environ- ment that allowed such harassment to flourish — also submitted on June 17. Investigation of harassment complaint led to recommendations e health authority hired an independent investigator to check out the harassment complaints — a co-worker also submitted one — and provided a report recommend- ing that McLean's manager "be provided with clear direction and expectations with regard to his role" and McLean, her co- worker and her manager receive "educa- tion on constructive problem solving" to help them learn how to "respectfully re- solve disputes as they occur." After receiving the investigation report, the health authority dismissed McLean's harassment complaint. McLean's psychiatrist determined that McLean was ready to return to work on a graduated basis beginning June 16, 2015, starting with two three-hour days leading up to three five-hour days by the fifth week and regular part-time hours by the eighth week. If the plan went well, her duties and responsibilities could increase. However, the disability co-ordinator told McLean that the health authority was reluctant to have her back and McLean didn't return until Sept. 8, when she began by job-shadowing her manager — who had taken training on coaching skills, assertive- ness, problem solving and team building. At the completion of the first phase of McLean's return-to-work program, the health authority determined her progress was slow and there was a lack of trust be- tween it and McLean. By the end of Oc- tober 2015, it decided to put the second phase on hold. is decision frustrated McLean and she said she wasn't being properly orientated or treated fairly. Her manager felt she wasn't asking enough questions to clarify things. e health authority contacted McLean's psychiatrist for clarification on whether her medical condition could hamper her ability to ask questions or bring forward concerns. e psychiatrist replied that her engagement would improve as she be- came more involved and recommended a gradual increase to her independent hours of work. However, McLean's manager found it difficult to find someone to supervise her next phase of the program, as everyone he asked didn't want to do it out of concern that she would file a complaint against them. McLean's manager continued to oversee her and provide feedback. McLean continued to challenge the way her manager did things and didn't agree with procedures, leading to more anxiety. By January 2016, after McLean's psychia- trist approved more independent hours of work, the manager informed McLean that she could be subject to discipline if she didn't obey his processes or follow in- structions. A meeting was held on Jan. 15 to discuss work standards and the concerns of both McLean and her manager. e health au- thority granted McLean's request to do continuing education and return to work on Feb. 5. However, on Jan. 29, McLean's psychiatrist sent a note stating that McLean was unable to work due to a medical condi- tion and would be off for two months. is was later extended until the end of April. On March 29, McLean's psychiatrist stated that she didn't foresee a return to work "anytime soon, at least not in the foreseeable future" — at least six months before even considering it. e sick leave was extended multiple times until Dec. 31. 4 CASE IN POINT: ACCOMMODATION ACCOMMODATION processes can be difficult and create hardship before a solution is found. However, having some difficulty doesn't necessarily mean the point of undue hardship has been reached. So ruled a Saskatchewan arbitration panel in reinstating a hospital worker with rocky working relationships who was dismissed after a difficult return-to-work program didn't go as planned. BACKGROUND

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