Combative Conduct in the Workplace and the Duty to Inquire

Tomasz Rutkowski, a unionized painter in the employer’s engineering department, filed a human rights complaint against his employer concerning its treatment of him in dealing with his mental disability.  In Rutkowski v. Westin Bayshore Hotel and another, 2018 BCHRT 235, the B.C. Human Rights Tribunal (the “Tribunal”) dismissed the complaint.

Facts

Mr. Rutkowski alleged that the Westin Bayshore discriminated against him by requiring that he go on administrative leave due to his mental disability; by allowing an environment where he was the subject of jokes about his mental health; by requiring him to obtain an independent medical evaluation (“IME”) before returning to work; and by protracting the process for returning him to work.

Mr. Rutkowski had a history of challenging behaviour and mental illness.  In October 2016, he was engaging in combative, argumentative and intimidating conduct at work.  Mr. Rutkowski was placed on administrative leave and asked to submit to an IME out of concern for the health and safety of him and his co-workers.  The employer also wished to learn whether Mr. Rutkowski required any accommodation.  He lost no pay, benefits or seniority during the leave.

Mr. Rutkowski raised concerns about bullying and harassment.  A workplace investigation found no breach of the employer’s code of conduct.

Mr. Rutkowski submitted to an IME with a doctor of his choosing.  The IME report, received on December 2, 2016, found that while Mr. Rutkowski was not a risk to himself or others, he did require accommodation of his mental disability.

More than a month after receiving the IME report, the employer, the union and Mr. Rutkowski met and agreed to enter into a formal return to work agreement.  While drafts of the agreement were exchanged, no final document was ever signed.

In March 2017, Mr. Rutkowski returned to work with accommodation.  The employer explained that the delay in returning him to work was due to Mr. Rutkowski’s failure to participate in the accommodation process and issues with the union’s non-responsiveness.

Decision

The Tribunal found that Mr. Rutkowski advanced his claim beyond the realm of conjecture as there was no doubt:  (1) he had a mental disability; (2) he experienced an adverse impact in employment because he was placed on administrative leave; and (3) he would not have been placed on administrative leave but for his disability.

The Tribunal went on to find that it was reasonably certain the employer would establish a defence at a hearing.  The Tribunal found that the employer’s duty to inquire as to whether Mr. Rutkowski required accommodation was triggered because of the extraordinary nature of his interpersonal conduct and, in particular, the employer’s knowledge of his mental disability.

The Tribunal addressed the duty to inquire:

…  [T]he duty to inquire is not a stand-alone legal duty but, rather, is an aspect of a respondent’s obligations in cases where it is not clear that accommodation is required, but there is reason to believe accommodation may be required.  If there is reason for an employer to be aware of a possible relationship between a disability and work performance problems, an employer who does not make further inquiries before taking action that adversely affects the employee, runs the risk of a finding of discrimination, if there is indeed a relationship between the performance problems and a disability.  Thus, an employer who is reasonably aware that there may be a disability requiring accommodation cannot ignore that fact and proceed to discipline or termination without running the risk of a Code violation.

The Tribunal found the employer was justified in placing Mr. Rutkowski on administrative leave and in requiring an IME to determine appropriate accommodation.

Mr. Rutkowksi also filed a human rights complaint against his union for failing to provide adequate representation to him regarding the foregoing issues.  In Rutkowski v. Unite Here, Local 40, 2018 BCHRT 236, the Tribunal dismissed his complaint.  It found that while Mr. Rutkowski’s mental disability led to the employer’s actions necessitating union representation, that did not establish a nexus between his mental disability and the quality of representation provided by the union.

Takeaways

• If an employee is exhibiting performance or behavioural issues and there is any suspicion that the employee may require accommodation for a physical or mental disability, employers must inquire into whether the employee needs an accommodation.
• Employers are generally justified in placing employees on leave pending adequate medical information which confirms the sort of accommodation, if any, the employee requires.
• In unionized environments, employers should work with union representatives where necessary, but human rights obligations apply irrespective of the union’s actions.

Previously printed in the LexisNexis Labour Notes Newsletter.