Canadian Employment Law Today

Canadian Employment Law Today Canadian Employment Law Today | | 3 Cases and Trends Cases and Trends Canadian HR Reporter, 2021 THE ALBERTA Human Rights Tribunal has overturned the dismissal of a 911 operator's discrimination claim on the basis that stress that contributes to a mental disability may require accommodation. Romaine Fleck-Brezinski was hired by the Edmonton Police Service in May 2005 and became a permanent full-time 911 operator in the communications department in October 2008. She performed well in the role and received performance reviews ranging from "standard" to "above standard," although her 2010 review mentioned some concerns about her leaving her station. She also occasionally served as an acting team lead. In January 2016, the police service performed a routine audit on Fleck-Brezinski's calls and discovered six missed calls over the previous five weeks. Fleck-Brezinski was scheduled to take a five-week unpaid leave of absence starting on Feb. 4 so she could undergo dispatch training with Alberta Health Services (AHS), but she was assigned adminis - trative duties until the leave began. Shortly before Fleck-Brezinski was sched- uled to return in early March, the police service prepared a document for the 911 supervisor that described 10 incidents over the past decade and declared that there was a "clear pattern of risk." The document went on to recommend that Fleck- Brezinski be removed from her 911 operator duties and be temporarily reassigned. The police service followed up with a thorough audit of its 911 operators and found that Fleck-Brezinski had missed 32 calls from leaving her station. Happy in new role When Fleck-Brezinski returned to work on March 12, she was put on administrative duties in the criminal division's investigative manage - ment and approval centre. She found that she enjoyed this role and wanted to stay, as the work atmosphere was more positive than in the 911 communications centre. She realized that the latter had caused her mental distress. Fleck-Brezinski continued to work in the criminal division over the five months and received counselling for help with coping with stress. However, in August 2016, the police service told her that she should return to her 911 operator position. She said it wasn't a good idea as the atmosphere there affected her mental well-being, but she didn't request accommodation, so she returned to her old role on Aug. 29. The resumption of her 911 operator duties was accompanied by a performance agree - ment that had been reached between the police service, Fleck-Brezinski and the union that included retraining requirements, call percentage targets, a requirement to notify supervisors when leaving her station, mini - mizing distractions and the use of personal devices and a recommendation to show respect to co-workers and supervisors. However, things didn't go well for Fleck- Brezinski. She felt that she was belittled and bullied by supervisors and trainers during her performance management and was subjected to close scrutiny and differential treatment. She also didn't feel that she received any recogni - tion for accomplishments. Her supervisors also weren't happy with the way things were going, as she was seen sleeping at her station, leaving without noti- fying her supervisor, handling calls poorly, using personal electronic devices and behaving aggressively with inappropriate language toward supervisors and co-workers. They held meetings to discuss the misconduct with Fleck- Brezinski and she said she was experiencing stress due to personal issues, but she still didn't request accommodation for any medical issue. Around the same time, Fleck-Brezinski received approval to work with AHS as a causal emergency call evaluator during her off-duty time. On Nov. 2, the 911 unit supervisor and a team lead met with Fleck-Brezinski to discuss an allegation that she had been ignoring a co-worker and having whispered conversa - tions with others. Fleck-Brezinski said that she wasn't feeling well and went home. She then booked off sick for four days over the next week, providing a doctor's note stating that she suffered from adjustment reaction with severe anxiety and she would "most likely need a change of her work environment." A second note added that her "stress-related disability is a direct result of working at the high stress envi - ronment of 911 communication centre." Fleck-Brezinski went on short-term disability (STD) benefits and the disability plan adjudi- cator determined that she was unable to work at any location due to her adjustment reaction. However, she continued to work with AHS. Resignation while on STD leave When it came to light that Fleck-Brezinski was still working at AHS while on STD leave, her supervisor told her that her benefits would terminate on Nov. 17 and she would have to return to work. Fleck-Brezinski responded by resigning her employment with the police service, stating that "my time away from [the communications department] changed my view entirely of the workplace there, and how it was no longer contributing to my mental or physical wellbeing." She added that the envi - ronment there would "continue to cause me illness on various levels." Fleck-Brezinski filed a human rights complaint alleging the police service discrimi - nated against her on the ground of disability by subjecting her to "progressive discipline and performance management along with a toxic work environment" that caused her stress that led to her resignation. An investigator, on behalf of the director of the Alberta Human Rights Commission, recommended that the complaint be dismissed because stress was not a disability under the Alberta Human Rights Act, the Edmonton police service had a right to manage its employees' performance, Fleck-Brezinski didn't tell the police service that she suffered from a mental disability or needed accom - modation and she resigned during her STD leave, which didn't give the police service the opportunity to accommodate her. The director dismissed her complaint. Fleck-Brezinski appealed to the tribunal, which agreed that "stress is normally not considered a mental disability when occur - ring as an isolated response to performance management" and Flex-Brezinski didn't provide a medical indication of a disability related to the stress until she was on STD leave, which was right before her resignation. However, the tribunal noted that Fleck- Brezinski provided medical notes linking her stress to a mental disability — adjustment reac - tion — before her resignation. These notes, combined with her complaints that the work- place environment in the 911 call centre would negatively affect her mental well-being, her aggressive behaviour toward supervisors and co-workers and her efforts to obtain counsel- ling while away from the 911 call centre, should have indicated to the police service that she may have had mental health issues that raised a duty to inquire if she needed accommodation, said the tribunal. The tribunal overturned the director's deci - sion to dismiss the complaint and sent the matter for a full hearing. For more information, see: • Fleck-Brezinski v. Edmonton Police Service, 2021 AHRC 10 (Alta. Human Rights Trib.). Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.smith@keymedia.com, or visit www.employ- mentlawtoday.com for more information. Stressed-out Alberta worker has complaint of discrimination based on mental disability dismissed,then accepted for hearing BY JEFFREY R. SMITH A stressful discrimination complaint

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