The grievor, JF, was a 10-year employee of Agropur Division Natrel, a leading Canadian dairy products producer. JF worked as a labourer and held the position of Pouch Pack Machine Operator at the time of his termination in October 2010. Natrel terminated JF for frustration of contract due to erratic and violent behaviour that it could not accommodate in the workplace. JF is a person with disabilities including PTSD, ADHD, and Type B personality disorders. Psychotic outbreaks in the workplace occasionally occurred. JF had a poor attendance record and was absent for 130 days in the final year of his employment, two months of which were spent as a patient at the Program for Traumatic Stress Recovery, Homewood Health Centre.
The union argued that JF’s termination was in breach of the Ontario Human Rights Code (“Code”)on the ground of disability and sought reinstatement to active work. In the alternative, the union argued that JF should be reinstated so that he could apply for long-term disability (“LTD”) benefits through the employer’s group plan. Following termination, JF had applied and been approved for both Ontario Disability Support Program (“ODSP”) and Canada Pension Plan (“CPP”) disability benefits. Although this was evidence of JF’s “total disability,” the union argued that the purpose of these benefits were income support, whereas the Code is based upon recognition of an individual’s inherent dignity and self-respect. The union argued that JF had demonstrated ability to work safely for 10 years and that his disabilities could be properly managed with medication and mental health support.
The employer argued that JF posed a safety risk to other workers and that it could not accommodate him short of undue hardship. After JF was released from Homewood Health Centre the employer and union met to discuss possible accommodation plans. However, JF had also exhibited further erratic and violent behaviour after being released including attempting to enter the work premises with his pit bull and engaging in allegedly threatening behaviour. At the time of his termination, the employer informed JF of his eligibility to apply for LTD benefits, but he did not do so.
Arbitrator Kaplan decided that this was not an appropriate case for reinstatement to active work, but that JF should be reinstated without compensation for the sole purpose of applying for LTD benefits. Arbitrator Kaplan accepted the employer’s arguments, supported by objective medical evidence, that JF posed a safety risk to other employees in the workplace and that accommodating JF under the Code would cause the employer undue hardship. Approval for both CPP and ODSP were further support that JF was totally disabled and could not perform the essential duties of his job.
This case illustrates a creative solution to a difficult problem. Both parties accepted the objective medical evidence that JF was disabled with severe mental health illnesses. Despite this, both parties also sought to find a way to support JF. Reinstatement for the purpose of applying for LTD benefits was one novel way to provide the necessary income support to JF while also recognizing the employer’s inability to accommodate reinstatement to active work short of undue hardship.