Rahmani c. Administrateur général (ministère des Transports), 2016 PSLREB 10
In a recent case a federal employee who slapped his manager was reinstated to his position and awarded $25,000. The case has received some notoriety in the national press, see for example, The National Post, 3 March 2016.
The employee in question, an engineer, had had difficult relationship with the manager before the latter assumed that position. The altercation occurred the on the manager was promoted to the position in February 2012.
Management conducted an investigation of the slapping incident.
31 A second meeting took place on August 22, 2012. The grievor maintained his version of the February 10 events and spoke of the prejudices that he suffered while on the team, particularly from Mr. Desbiens (jealousy, exclusion, and derogatory comments to a client). Toward the end of the meeting, his union representative presented a medical certificate dated August 16, 2012, which implied that the grievor’s medical condition or his medication might explain what he did on February 10. It was the first time that the employer had heard of a medical explanation.
After the incident, Rahmani was excluded from the work place and worked from home. Later he went on medical leave.
Management asked Health Canada to assess Rahmani. One of the letters from the medical professionals stated: “that it is plausible and consistent with the medical information in his file that his medical condition was similar in February 2012.”
In April 2013, Rahmani was terminated for “[translation] voluntarily committing a violent act at work.”
The adjudicator noted:
42 Two themes emerged regularly from the employer’s witnesses’ statements: first, the fact that the grievor did not seem to show genuine remorse and never properly apologized to either Mr. Desbiens or the employer, and second, his colleagues feared his return to work because his angry explosion had scared them.
The adjudicator accepted that misconduct occurred. However, the Employer fell short:
79 The employer declared that it accounted for aggravating factors. It added that there were no mitigating factors. I do not agree. I believe that it failed to consider several important factors, such as the absence of a disciplinary file, testimony about the grievor’s serious and professional work, Mr. Desbiens’s provocation, and the grievor’s state of health.
The adjudicator continued:
92 Mr. Turnbull said that the family physician’s certificate and Dr. Given’s statement did not convince him that the grievor’s state of health might have played a role in his behaviour. It is true that it is not because of psychiatric problems that some react violently at work. However, such an important factor cannot be ruled out; nor can its existence be denied.
93 The employer chose to impose a penalty without accounting for the grievor’s state of health by ruling out the following mitigating factors: his professional performance, as attested to by the witnesses and congratulatory emails he received for his teamwork; the absence of past disciplinary measures (however, I am aware of the interpersonal difficulties that were reported in his performance evaluations); a certain provocation as part of the events that led to the February 10, 2012, incident; and the isolated, spontaneous, and unique character of the act. Given all those factors, I find that the termination penalty was unjustified, and I would substitute a suspension for it.
94 Furthermore, the grievor pointed out that discrimination occurred. For the following reasons, I find that the fact that the employer refused to consider his state of health at the time of the termination constituted discrimination that contravened the collective agreement and the CHRA.
Here:
108 As I already indicated, I find in this case that the grievor’s disability was a factor in the decision to terminate him. The facts in this case are similar to those in Mellon v. Canada (Human Resources Development Canada) 2006 CHRT 3. In that case, the complainant argued that her mental health was a factor in her termination, but the employer submitted that her deficient performance was the only reason for the termination. The Canadian Human Rights Tribunal ruled in favour of Ms. Mellon. Once made aware, the employer was obligated to consider the grievor’s state of health before making its decision.
The employer found the medical evidence to be improbable and inclusive.
The adjudicator found, however:
113 In my view, such a degree of evidence is unreasonable. It is sufficient to conclude that the grievor’s medical condition probably influenced his behaviour. Dr. Maziarz was very clear and had no doubt about the relationship between the medical condition and the alleged act. The employer chose not to believe it because his note arrived six months later. It also chose not to retain Health Canada’s advice, which mentioned that a connection was very likely.
…
116 The employer was reluctant to recognize the seriousness of the grievor’s medical condition. Since it did not retain the medical explanation, it never considered accommodation. Its refusal to foresee accommodation, given a real medical condition that led to adverse differentiation at work, was contrary to the CHRA and the collective agreement.
While the adjudicator noted that the employer had laudable concerns, such as ensuring a violence-free workplace, it was obligated to consider the situation’s medical aspect, which it did not do. The adjudicator awarded $15 000 for pain and suffering and $10 000 as special compensation and reinstatement but no back pay.