As a Business Law Firm, a growing part of our practice is advising and representing employers in Applications before the Human Rights Tribunal of Ontario (HRTO).
If your business has not been hit with an Application, you may feel this Blog is irrelevant to you: think again.
The trend in decisions of Courts and Tribunals is to completely erode the ability of Business to predict the reasonable likely outcome of their positions when it comes to accommodating employees with disabilities. This is particularly so when the accommodation involves balances that requirement against the requirement to protect the other employees from violence and/or harassment by the individual who must be accommodated.
In theory, a business only need accommodate a disability if it does not provide undue hardship to the business. After reading a recent decision of the HRTO in the matter of MacLeod and The County of Lambton, it appears this that the employer must endure undue hardship.
In the Lambton matter, a bipolar employee who sexually harassed co-workers, verbally abused superiors and those he supervised and bought expensive equipment that was not authorized and is now missing, was required to be reinstated into the workplace as a manager again.
Incredible.
I can only imagine how many people will be looking for new employment in that workplace.
I cannot comprehend how the HRTO was able to ignore how the women who were sexually harassed by this person will feel having to report to him. This is mind boggling. This will create a completely dysfunctional work environment. This is accommodation beyond undue hardship.
Not only was the employer required to take back the employee, they had to pay for expensive training, pay damages for “hurt feelings” and a litany of other expenses to comply with the HRTO. The employer in this case was a Town’s EMS; therefore, it is the tax payers who are picking up the tab for this decision.
If you are en employer dealing with an employee claiming a physical or mental disability, or simply exhibiting characteristics that may be a disability, get legal advice before taking any action regarding accommodation or refusing to accommodate. Getting this wrong will be expensive.
Inga B. Andriesen JD