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Toronto Workshop Series

Discipline Versus Accommodation: A step-by-step guide to dealing with disability-related misconduct


October 27, 2017
The Westin Harbour Castle



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Speakers


Sheri Price
Arbitrator/Mediator

Sharmila Clark
Employer Counsel, Legal Services
City of Toronto
Denis Ellickson
Union Counsel
CaleyWray


Workshop Summary


Various types of disabilities, including substance dependency and mental health disabilities, may cause employees to "break the rules". Employers and unions face a host of challenging issues in cases of disability-related misconduct. Can an employee be dismissed for conduct caused, in whole or in part, by a disability? How should accommodations be implemented in order to assist the disabled employee while ensuring workplace safety and minimizing the risk of future incidents? This interactive workshop will explore a range of legal issues in this area and provide practical guidance to employer and union representatives who must respond to disability-related misconduct.



Program



8:00 a.m. – 9:00 a.m.

BREAKFAST AND REGISTRATION


9:00 a.m. – 9:25 a.m.

 INTRODUCTION  Welcome and Overview


9:25 a.m. – 9:45 a.m.

 PART 1  Understanding the Duty to Inquire


  • Recognizing when to investigate whether disability played a role in misconduct
  • Steps to take if you suspect disability has contributed to misconduct
  • Identifying typical behaviours and warning signs
  • Responding to an employee who denies there is an issue
  • Understanding the union’s role


9:45 a.m. – 10:15 a.m.

 EXERCISE  Interactive Exercise #1


Participants will work through a realistic scenario in small groups to develop strategies for making appropriate inquiries.


10:15 a.m. – 10:30 a.m.

MORNING BREAK


10:30 a.m. – 10:50 a.m.

 PART 2  Meeting Accommodation Needs


  • Considering appropriate accommodative measures
  • Determining the medical evidence an employer may require
  • Balancing the needs of the accommodated employee with the health and safety of co-workers or clients
  • Taking into account the possibility of relapse when accommodating an employee with substance dependency
  • Meeting the union’s duty of fair representation when the misconduct of one member adversely affects other members


10:50 a.m. – 11:20 a.m.

 EXERCISE  Interactive Exercise #2


Participants will work through a realistic scenario in small groups to assess the need for medical information, develop an accommodation plan, and respond to concerns of co-workers.


11:20 a.m. – 12:00 p.m.

 REVIEW  Debrief and Feedback Regarding Interactive Exercises


12:00 p.m. – 1:00 p.m.

LUNCH


1:00 p.m. – 1:20 p.m.

 PART 3  Assessing Undue Hardship, Last Chance Agreements, and Other Conditions


  • When is undue hardship established? What about violent disability-related conduct? Does it matter if the employee occupies a position of trust?
  • Evaluating when an employer can require drug/alcohol testing
  • Assessing what is a sufficient rehabilitation effort
  • Are different approaches warranted in different industries?
  • Considering whether last chance agreements comply with human rights legislation


1:20 p.m. – 2:15 p.m.

 EXERCISE  Interactive Exercise #3


Participants will work in small groups to assess issues raised by a realistic scenario. Workshop leaders will engage participants in an interactive discussion regarding the scenario and provide feedback.


2:15 p.m. – 2:30 p.m.

AFTERNOON BREAK


2:30 p.m. – 2:50 p.m.

 PART 4  Considering Discipline


  • Understanding the “hybrid” approach and the difference between culpable and non-culpable conduct
  • Assessing the evidence required to establish a nexus between the disability and the misconduct
  • Can an employee be disciplined for specific conduct such as inappropriate Internet use, emotional or violent outbursts, absenteeism, insubordination, dishonesty, or on-the-job impairment where the employee has a diagnosed disability or dependency?
  • Are employees always reinstated if they have been fired for misconduct and their disability has not been accommodated?
  • What happens if medical evidence of a disability comes to light after an employee is disciplined?
  • How should post-discharge evidence of successful rehabilitation be treated? Is such evidence admissible at arbitration?


2:50 p.m. – 3:45 p.m.

 EXERCISE  Interactive Exercise #4


Participants will work in small groups to assess issues raised by a realistic scenario. Workshop leaders will engage participants in an interactive discussion regarding the scenario and provide feedback.


3:45 p.m. – 4:00 p.m.

 CONCLUSION  Final Remarks and Questions



Accreditation


HRPA Continuing Professional Development

The Human Resources Professionals Association (HRPA) has approved Lancaster House as a Continuing Professional Development Partner, guaranteeing that participation in our workshops will be accepted by the HRPA for CPD credit.


Lancaster House CPD
  • "Members of the Law Society of Saskatchewan should contact their Law Society regarding CPD Approval."
  • CPD for Members of the Law Society of Upper Canada: 5.0 Substantive Hours; 0 Professionalism Hours.
  • This program has been approved by the Law Society of New Brunswick for 5.0 Continuing Professional Development hours.
  • Members of the Nova Scotia Barristers Society may count this program for 5.0 Continuing Professional Development hours.
  • This program has been approved by the Human Resources Professional Association (HRPA) for 5.5 Continuing Professional Development (CPD) hours.