It is not easy to be a human resource professional in the modern workplace. Marli Rusen of Management Matters, is an experienced harassment and human rights investigator in British Columbia and can assist you in diagnosing and resolving human rights issues in the workplace. As this paper demonstrates, this type of assistance is of incredible value to any organization †big or small, unionized or not. Historically, when workplace misconduct arose, employees would either deny, admit or defend their role in a particular event. A disciplinary investigation took place and the employer would then make a decision concerning what, if any, disciplinary action would be imposed, depending on all the circumstances. Recently, however, the landscape has changed. Nowadays, employees acknowledge their involvement in a particular incident but assert that the misconduct arose because of a particular mental illness or condition. As a result, they say that they should not be held responsible for their misconduct and should be treated in a non-blameworthy manner. At the same time, co-workers involved in the same incident often approach the Employer with concerns about the event that transpired. In matters involving threats, harassment or violence, the co-workers assert their right to a safe workplace. Further, in accidents involving heavy machinery or acts linked to professional negligence, the Company is concerned about public and consumer safety and its civil and criminal liability in maintaining the employment of someone who poses a risk to its overall operation. When workplace misconduct arises, and competing claims are at play, a hasty or "reactive" decision by the Employer has the potential to result in a multitude of complaints filed by different individuals, depending on their respective interests or involvement in the incident. The employee with the alleged mental condition may file a grievance or commence litigation relating to the imposition of discipline following the workplace incident. The same employee may file a human rights complaint on the basis of mental disability. In addition, the Employer may be faced with a claim of discrimination, from co-workers or members of the public. Co-workers also may file a complaint with Worksafe BC asserting an unsafe workplace. In more extreme cases, employees will launch an action in constructive dismissal based on an intolerable working environment. In view of this, it is important for employers to develop a principled approach to deal with these complex claims. This approach requires the employer to balance the multitude of interests in the workplace, rather than focus on one to the exclusion of others. While there are no easy answers in these situations, this paper offers some suggestions to employers on how to deal with workplace misconduct, particularly where an employee asserts that the misconduct arose due to his or her mental condition. II. Transforming Legal Principles into Practicalities: a Proposed Framework The "principles" governing workplace misconduct and mental disability are often difficult to understand and even harder to implement in the workplace. Accordingly, in this section, we offer some workable guidelines for employers to follow when faced with the vexing issue of mental disability and workplace misconduct. (a)Did the workplace incidents take place? As with any allegation in the workplace, the employer’s first priority is to conduct a full and fair investigation in order to determine whether, or to what extent, the allegations of misconduct or performance deficiencies are factual. The employee’s medical condition is not relevant to this initial stage of the process. (b)Does the employee suffer from a bona fide medical condition? Assuming the employer concludes that some, or all, of the allegations are factual, the employer must then assess the legitimacy and effect of the employee’s claim regarding his or her medical condition. In this regard, the employer must first determine whether the employee suffers from a "mental disability". This determination should be made with the assistance of an expert in psychiatry. Commonly, employees assert that symptoms such as "fatigue", "stress" "grief" or "anxiety" are "mental conditions" that have impaired their judgment in the workplace and have "caused" their workplace misconduct. A psychiatric opinion is necessary to assist in determining whether the symptom or condition complained of is, in fact, consistent with a bona fide medical or psychiatric condition. (c)Did the medical condition cause the workplace misconduct? The next phase of the analysis involves determining whether the misconduct or performance deficiencies should be treated in a blameworthy manner. This depends on whether the mental illness has caused the specific workplace incident. Expert evidence is crucial in order to make this determination. A psychiatrist will need to consider all of the circumstances at the workplace, especially in relation to the workplace incident itself, as well as the history and treatment of the particular medical condition involved, to determine whether or to what degree the misconduct is caused by the underlying medical condition. Each situation is different. For example, an impulsive act of theft may have been caused by kleptomania. In another situation, a sober alcoholic may have stolen but not because of his or her alcoholism. In each case, when considering the issue of causation, the employer must consider: (1) the circumstances surrounding the specific workplace misconduct; (2) the particular medical condition at issue; and (3) whether or how that condition has manifested itself in a given employee at an identified point in time. Employers who follow the steps set out above will increase the likelihood of better understanding the nature of the workplace issue, which is a necessary "first" step to effectively resolving the matter.
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