Stewards
Case study: Accommodating panic attacks in the workplace
Do you represent members who suffer from anxiety or panic attacks? A Human Rights Tribunal case that PSAC won in 2006 provides some guidelines as to how the employer is obliged to accommodate them. Taking a close look at this case can give you some tools on how to best represent members struggling with these challenges.
In Mellon v. Canada (Human Resources Development), the Tribunal that the employer discriminated against a PSAC member on the basis of her disability (panic and anxiety attacks) by not renewing her term contract. The Tribunal determined that panic attacks, in this situation, constituted a disability under the Canadian Human Rights Act.
The member was a term employee who at the time was working at Human Resources Development Canada (as it was then called). She filed a complaint to the Canadian Human Rights Commission against her employer claiming that the decision not to renew her term contract was based on the fact that she was suffering from panic and anxiety attacks as a result of her stressful workload.
At the time she was consulting her doctor who recommended she be off work for several weeks. The doctor testified at the hearing that the member was also suffering from reactive depression. The member had brought her medical condition to her employer's attention on several occasions.
At the end of her term contract, the employer told the member that her contract would not be extended for the member's own well being as well as the functioning of the work unit. Other employees had also been complaining that the member's work was not getting done. The employer had decided that this was a performance issue and not a question of disability.
The Canadian Human Rights Tribunal ruled that it was clear that the employer's decision not to renew the contract was influenced by the member's disability, namely, panic attacks. It was held that the member's health or disability was manifestly present in the employer's mind when it decided not to continue to employ her and that no efforts were made to accommodate her to the point of undue hardship.
This decision makes some important comments on mental disabilities in the context of the Canadian Human Rights Act.
Mental disabilities and medical information:
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The Canadian Human Rights Act does not contain a list of acceptable and unacceptable mental disabilities. It is not just the most serious or most severe mental disabilities that are entitled to the protection of the Act. Additionally, it is not solely those that constitute a permanent impairment that must be considered. Where appropriate, even mental disabilities described as minor with no permanent manifestation could be entitled to protection under the Act. However, sufficient evidence still needs to be presented to support the existence of the disability.
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An individual with a disability (and in particular, somebody with a mental disability) may not know the exact nature and extent of that disability at the time they are experiencing the symptoms. In such circumstances, we cannot impose a duty to disclose a conclusive medical diagnosis.
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Although an over reliance on medical information is not necessary in order to establish that a disability does or does not exist, there needs to be more than just a bare statement that one suffers from a disability to meet the test. The evidence can be drawn from medical information and from the context in which the impugned act occurred
Employer's duty:
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Based on the events, the employer knew, or ought to have known that the member was experiencing anxiety from work-related stress. It is not enough for the employer to say that they were not advised or aware of the member's condition.
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The employer had the responsibility to at least inquire as to whether the member's condition might impact upon its decision to terminate the employment of the member. The employer should have explored why the work was piling up and why the employee's performance was going down.
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It is important to remember that performance and disability are not unrelated, especially inasmuch as disability can affect an employee's performance. Not all performance problems are rooted in disability, but those that are usually require some measure of accommodation.
Full case reference:
Mary Mellon v. Human Resources Development Canada, 2006 CHRT 3
T928/4804 (January 25, 2006)
Date Modified : 2011/12/12
