Good faith not enough for accommodation

Employer had return-to-work plan but worker didn’t want to see co-workers who caused panic attacks
By Jeffrey R. Smith
|Canadian Employment Law Today

The Ontario Arbitration Board has given a bipolar Frito-Lay employee his job back after he was terminated for failing to follow through on a plan to return to work from short-term disability (STD) leave.

The worker, a millwright for Frito-Lay Canada, was hired on July 1, 2003, for the day shift at its Cambridge, Ont., plant. Though he served on the day shift, from 7 a.m. to 3 p.m. during his two-month probationary period, the company intended to employ him on the afternoon shift from 3 p.m. to 11 p.m. Company practice was that only employees with 20 years of seniority could secure a permanent day-shift position.

The employee had a history of panic attacks and depression dating back to his childhood. The panic attacks were usually triggered when he felt threatened and involved an increased heart rate, chest pressure, difficulty breathing and, according to his doctor, “a sense of impending death.” When this happened, the employee felt the need to get away from the cause immediately.