Lambton guilty of discrimination against worker with bipolar disorder says human rights tribunal

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The Ontario Human Rights Tribunal says the County of Lambton discriminated against an employee with bipolar disorder.

Lambton has been ordered to reinstate the man to his former position and pay three years of back wages, interest and damages which could total over $300,000.

The tribunal’s vice-chair, Ken Bhattacharjee, handed down the ruling Sept. 10. County councilors were briefed about the ruling during an in camera session Sept. 17.

In 2005, a man was hired to a managerial position within the county system. He didn’t tell his employers he was diagnosed as bipolar.

The tribunal heard that for several years the man’s work was satisfactory, but in late 2007 that began to change. His doctors altered his medication and that made the symptoms of his bipolar disorder more obvious.

The tribunal heard the man bought items without following the county’s purchasing guidelines, took home items he’d purchased for the department for over a year, spoke crudely to managers and female employees, offered jobs to friends and shared his negative opinions about his manager with people outside of the county during business communications. He also attended a conference, while on sick leave, after being told not to.

According the medical experts testifying at the tribunal, all of these things reflect the symptoms of bipolar disorder including the sudden spending sprees and rapidly changing moods and  arrogance.

In the summer of 2008, the employee went on sick leave . That was the first time he told Lambton County officials he had bipolar disorder.

The man tried several times over a period of about a year to return to his regular job only to be told by the county he was assigned to special projects while questions about his conduct were investigated. He remained on sick leave for much of that time as his depression deepened.

The adjudicator found that up until 2011, the county tried to accommodate the man’s disorder.

But then county staff, after reviewing complaints about the employee, told him he would never return to his managerial position.

That, said the vice chair, was discriminatory because the county should have known his past behaviour was due to his bipolar disorder.

In his ruling Bhattacharjee wrote Lambton County’s then Human Resources manager concluded that the applicant had engaged in “willful” misconduct, and he was not confident that the applicant would not engage in “willful” misconduct again in the future.  (The county employee) failed to take into account that bipolar-related behaviour is not “willful”, and that his behaviour may be controllable with appropriate medical treatment.”

Former managers also testified if the employee had not informed her that he had bipolar disorder, “she would have fired him for misconduct and insubordination” The former manager also argued the county had accommodated the employee saying “that not firing him was a ‘big’ accommodation.”

Bhattacharjee has ordered the county to reinstate the man to his former position. He acknowledged the man’s conduct with his fellow employees may have damaged relationships but “a properly implemented workplace restoration process, which is run by experts in mental health and reconciliation, can repair the damaged and compromised relationships.”

Bhattacharjee also gave the county 30 days to arrange training for several of its top-level managers on bipolar disorder and 45 days to come up with a “protocol” to deal with any future bipolar-related behaviours which will show how the man will be accommodated in the workplace.

The tribunal ruling could also cost the county hundreds of thousands of dollars.

The tribunal ordered Lambton County to pay the man’s wages since Oct. 2011 with interest.

When contacted by The Independent, Lambton County officials would not comment on what that figure might be, however the Public Sector Salary Disclosure from 2011 shows his replacement was making over $104,000 per year.

Bhattacharjee also ordered the county to pay $25,000 with interest for injury to dignity, feelings and self-respect saying the man “was vulnerable and suffered immensely.”

Lambton County Warden Todd Case could say little about the ruling since county councilors are still dealing with the matter in camera.

County Solicitor, David Cribbs, says the county could appeal either to the tribunal or to divisional court. Cribbs says the county has until Oct. 10 to decide if it will appeal.

 

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