HRD Canada spoke to Andrew Schafer, partner at Norton Rose Fulbright, to learn more
Discipline employees for misconduct when a disability is involved is a subject that should be approached with care and consideration – and yet many employers are still in the dark about how exactly to proceed.
Walking the line between your duty to accommodate and preserving the wellbeing of the rest of your staff body can be difficult – but charging on without any thought of what to do is equally troublesome.
We spoke to Andrew Schafer, partner at Norton Rose Fulbright to shed some light on the controversial topic.
“Firstly, after any incident, employers need to conduct a full investigation and decide whether what has occurred is related in any way to a disability,” prefaced Andrew. “Part of that analysis will be interviewing the employee and any witnesses about what happened. During this time, the worker in question may inform the employer that their conduct was caused by a disability- however, they may not. It’s the employer’s task to ask questions and determine the facts that will then lead them onto making further enquiries on whether there’s a disability at play”
If the employer determines that the conduct was caused by a disability, then disciplining the worker carries a risk of a human right complaint or, in the unionized sector, a grievance. So, once it’s determined that a disability has caused the behaviour in question, the employer must consider whether they are required to accommodate the employee’ disability.
HR needs to assess what accommodations are necessary in each individual case. Andrew was quick to point out that this doesn’t mean the employers is forbidden from addressing the conduct with the employee – it’s within their rights to do so.
“In fact, the manager can say to the employee that the behaviour in question is not to happen again. But if they’ve disciplined them before fully understanding the facts of the case, including the nature of the disability, and considering their duty to accommodate, they risk a complaint.”
If the conduct is not caused by a disability – then of course the employer can proceed without worry.