Canadian Employment Law Today

Canadian HR Reporter, 2019 On May 11, while on sick leave, McLean filed another harassment complaint against the health authority and all of its directors, managers, pharmacy and HR staff. She claimed that the behaviour of staff during her attempt to return to work was harassment and retribution against her, as there was no attempt to deal with the issue that caused her mental illness or foster an environment in which she felt safe to voice her concerns. An independent consulting firm inves- tigated the complaint and found no proof there was harassment. Cleared for return to work On Dec. 20, 2016, McLean's psychiatrist cleared her to return to work in "plus or minus" four weeks. e health authority found this ambiguous and didn't think the prospects of a successful return to work were any better, especially considering the morale issues that existed before McLean's initial return-to-work attempt. e health authority determined that it had done all it could to accommodate the worker and had reached the point of undue hardship. It terminated her employment on Jan. 16, 2017, offering a lump-sum pay- ment equalling 10 months' salary and all unpaid overtime McLean had accumulat- ed. Her benefits were terminated immedi- ately. Payment was contingent on McLean signing a release of liability. McLean declined to sign the release and the union grieved her dismissal, arguing that the health authority didn't meet its duty to accommodate her medical disability. e union pointed out that the collective agree- ment not only prohibited discrimination but also required the employer to meet with the employee "to identify the details surround- ing the employee's return to work." e three-member arbitration panel found that the health authority could not prove it had reached the point of undue hardship. During the initial part of McLean's return-to-work program from Septem- ber 2015 to January 2016, her wages were paid by the disability plan with no cost to the health authority. e arbitration panel found no evidence that there were any workplace safety concerns, so McLean's medical restrictions alone didn't place un- due hardship on the health authority, said the panel. At no point did McLean's psy- chiatrist state that McLean wouldn't make a favourable recovery — this is what both the health authority and McLean expected and what they were planning for with the return-to-work program, the panel added. As for the issues with McLean's attitude and other staff members who didn't want to be part of the process, the arbitration panel found that "the employer has an obligation in the accommodation process to be pro- active by taking reasonable measures to prevent and diffuse morale problems in the workplace," which it didn't do in this case — despite the investigation report follow- ing McLean's first harassment complaint recommending efforts to build team rela- tionships and work on constructive prob- lem solving. e arbitration panel noted that the health authority had options such as me- diation and progressive discipline for cul- pable conduct unrelated to McLean's dis- ability — such as her behaviour or failure to ask questions to clarify things — or hav- ing her job-shadow someone other than the manager with whom she didn't have a good working relationship to address the working relationship between McLean, her manager and other employees. It chose not to pursue any of these options. "It appears the employer was content to just let the concerns of the co-workers play out with no direction from the employer to alleviate the problem," said the panel. e panel also found that, as of Janu- ary 2016, the return-to-work program was making progress, as McLean was gradually working more hours and starting to work in- dependent hours. e health authority was planning on continuing the accommodation process before McLean had to go on medical leave again — leading to the inference that undue hardship had not yet been reached. e panel noted that the return-to-work program had become difficult for most of the parties involved, but it hadn't reached the point where it wasn't viable. Finally, when McLean tried to return to work in December 2016 after her second medical leave, the health authority made no attempt to accommodate her, the panel said. Relations between McLean and her manager and co-workers had probably worsened because of McLean's second ha- rassment complaint, but again the panel found that no warning or discipline was is- sued for any non-disability-related miscon- duct. Instead, when McLean's psychiatrist cleared her to return to work, the health au- thority terminated McLean's employment. e arbitration panel acknowledged that McLean didn't make things easy for herself but that, ultimately, the health au- thority bore responsibility for managing the accommodation process better and ad- dressing the staff morale issues. ere was no cause for dismissal and undue hardship had not been reached in the accommoda- tion process. e health authority was ordered to rein- state McLean to her position with compen- sation for lost wages, seniority and benefits. For information see: • Health Sciences Association of Saskatch- ewan v. Saskatchewan Health Authority (Successor of Kelsey Trail Health Region), 2019 CanLII 70609 (Sask. Arb.). November 6, 2019 | Canadian Employment Law Today CREDIT: STEVECOLEIMAGES ISTOCK

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