THE EMPLOYERS' EDGE
BUS-ted! School Bus Driver in PEI was Insubordinate, and NOT Subject to Discrimination
In a welcome decision from Canada’s smallest province, a pervasive myth has been dispelled: an employee with a disability who belongs to a union can still be terminated for just cause. A dismissed Human Rights claim was appealed up to, and ultimately dismissed by, the PEI Court of Appeal.
The Applicant, Gordon Cairns (“Cairns”), was a school bus driver who had been hired by the Eastern School District in Prince Edward Island in 1984. He was represented by a unit of the Canadian Union of Public Employees (“CUPE”). He had a clean driving record and no history of formal discipline until March of 2005. That is when things got very unusual.
On March 23, 2005 he was given a written reprimand for failing to provide bus route descriptions and student lists in accordance with the prescribed forms. The same day, he was given a one day suspension without pay for insubordination. In September, he had three other incidents of formal discipline including a three day suspension for failing to pick up between 30 and 40 students, and leaving a vulnerable student at the school before staff supervision was in place. Later he was given a written reprimand for phoning the parents of that vulnerable student and trying to elicit their support to minimize his discipline. He was then given a formal notice for making unfounded and damaging allegations against the School Board in a public setting.
Not surprisingly, the employer decided that it needed to take some action with regard to their employee. Rather than going for a strictly disciplinary strategy, the District decided to try a “therapeutic” approach by placing him on administrative leave with pay pending successful completion of a driving evaluation and a psychological assessment. Cairns was absent from the scheduled driving exam, and notified that the employer would consider him absent without authorization, and that if he remained absent it was highly likely that he would be terminated with just cause.
Cairns wrote to the District seeking an explanation for why he was being instructed to undergo a psychological exam. He was assured that the employer had not formed an opinion about his fitness for work even in light of his uncharacteristic and troubling behaviour, but needed an objective and qualified opinion to assist them in deciding the appropriate next steps.
A subsequent third driving exam was scheduled, and again Cairn was absent. He was terminated for just cause on the basis of insubordination. In response, Cairns filed a complaint to the PEI Human Rights Commission alleging that he had been discriminated against on the basis of perceived disability.
The application to the Commission was short-lived. The Commission found that even if the facts alleged by Cairns were presumed to be true, they did not amount to discrimination. Rather, the Commission ruled that he was terminated for refusing to attend the assessment, and not because of a perceived disability. He ultimately appealed to the PEI Court of Appeal.
A three judge panel dismissed the appeal, ruling that the court below did not err in upholding the Commission’s decision. In part, the Court ruled unanimously that Cairns did not discharge his onus to establish the required link between his termination and the protected ground of [perceived] disability. The Court stated:
In this case, the Executive Director and Chairperson Delegate found that the perceived disability is a protected ground and that GC suffered an adverse impact but the protected characteristic was not a factor in the adverse impact. They concluded that his dismissal was triggered by his refusal to take the [driving] test and the psychological assessment, not because of any perceived disability. This decision is clearly within the range of acceptable, rational conclusions based on the law and the facts. The [School District] provided [GC] with three opportunities to take the [driving] evaluation and gave him proper warning of the ramifications of his failure to do so. There was ample evidence on the record to support this conclusion.
There are a number of things that I personally like about how the employer acted in this case:
Upon noticing uncharacteristic behaviour, the employer took positive action.
There is no doubt that Cairns was properly subject to progressive discipline for his infractions in March and September, but what impresses me more is the proactivity of the employer to suggest a “therapeutic” approach, including trying to get objective information with respect to Cairns’ psychological help. Employers may have a positive duty in appropriate circumstances to begin the accommodation process when, for example, they notice that an employee is exhibiting prolonged uncharacteristic and disconcerting behaviour.
The Employer showed some patience.
Rather than jumping straight to a drastic final action, the employer communicated with the employee and his Union regarding its need for objective information. This is a crucial starting point for accommodation in most cases, but also where an employee’s mental health may be in question, it is wise to provide them ample opportunity to agree to be examined and provide reasonable medical information.
- Ultimately, the Employer stuck to their guns and won.
To be fair, Cairns helped in this case by refusing to accept reasonable resolutions at an early stage, essentially forcing the employer to justify their actions. But the ground work had been laid with proper proactive attempts to determine the employee’s fitness for the position that they were able to show the Commission and later the Court, that Cairns’ flat refusal to participate in his own assessment (and therefore potential accommodation) was not discrimination under any theory of Human Rights law, but instead gave the employer proper grounds to terminate with cause.
Don’t get me wrong, dealing with any disability issues in the workplace need to be treated carefully and delicately. The lawyers at CCPartners are well-versed and experienced in assisting employers deal with mental health issue in the workplace, including the discipline of employees who may be under some form of a disability.
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