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County loses discrimination case

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Heather Wright

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

The tribunal has ordered the county to reinstate the man to his former position and pay three years of back wages, interest and damages, which could total more than $300,000.

Tribunal vice-chair Ken Bhattacharjee issued the ruling Sept. 10 and county councillors were briefed behind closed doors Sept. 17.

In 2005, the man was hired to a managerial position and didn’t tell his employer he had been diagnosed as bipolar.

For several years the man’s work was satisfactory, but in late 2007 that began to change. Doctors altered his medication, making his bipolar disorder symptoms more obvious, the tribunal heard.

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

Medical experts testifying at the tribunal said his actions reflected the symptoms of bipolar disorder, including sudden spending sprees, rapidly changing moods and arrogance.

In the summer of 2008, the employee went on sick leave, and for the first time told county officials he had bipolar disorder.

The man tried several times to return to his regular job, only to be told he was assigned to special projects while questions about his conduct were investigated. He remained on sick leave 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, told the employee 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 that Lambton’s then Human Resources manager had “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 ordered the man reinstated to his former position. He acknowledged the man’s conduct 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 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.

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

Lambton County officials would not comment on the figure. However, the Public Sector Salary Disclosure from 2011 showed his replacement made over $104,000 a 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 county councillors are dealing with the personnel matter in-camera.

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

Heather Wright is publisher and editor of The Independent in Petrolia

 

 

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