Why mental illness is not grounds for dismissal

On July 26 last year, the Industrial Court issued an award on a dispute that infrequently comes up in that judicial venue, although since the emergence of the covid epidemic it appears more frequently in courts and tribunals throughout the Commonwealth that share our common-law foundation of jurisprudence.

I refer to the issue of mental illness during employment. It comes up in actual (de facto) practice on a more frequent basis than it would appear, because when it manifests itself as threatened or actual violence on the job, the reason for dismissal is labelled "violence" or "fighting on the job," not mental illness.

Mental illness is not something most HR/IR professionals are trained to diagnose or to handle. Indeed, most medical practitioners are not, either, so on the job they retreat into the binary construct established by legal systems.

"Mental illness" in the psychiatric dictionary includes depression. Normal human beings get depressed, irritated, anxious, worried, fed up and off balance from time to time, especially, in TT, when traumatised by gunshots, traffic foul-ups, marital or domestic violence, on a daily or periodic basis. It appears on a sliding scale from minor to extreme.

This kind of depression, or that commonly referred to as “post-alcoholic” or “a hangover,” which is your brain trying to recover from alcoholic damage, or the hormone fluctuations from a sudden rush of testosterone or oestrogen in males and or females (apparently we both are prone to both) are not generally considered disabling mental illness, unless, of course, the stress caused to an individual’s nervous system slides them from one end of the scale to the other.

When it does do so, however, it is associated with impaired functioning. There is no hard and fast distinction when an employee, a manager or a fellow worker has crossed the line, as it varies from person to person. It can be very noticeable, however, to people with whom one works or just interacts regularly, as there can be sudden changes in behaviour, extreme reactions to normal events or a withdrawal from all normal interaction.

In the case under scrutiny here, a concerned worker employed by National Gas Company at Beach Camp, in 2020 brought to the attention of the company that a fellow employee, who had been absent on February 25 (the day after Carnival), had been putting some pretty frightening postings during that time on social media. They were, and I quote from the judgment: "several seemingly incoherent messages with possible references to violence against employees of the company.”

Any experienced IR professional will immediately pick up three core references, none of them decisive in itself, but cumulatively they are significant.

First is a possible threat of violence against employees of the company. No such reference can be ignored by any IR or security professional.

Second, the mention of Carnival. People in our culture are heavy drinkers over Carnival, whether they play mas or not, hence the possibility of one form of mental distortion called "post-alcoholic depression." It is very common and very real and distorts normal behaviour. Third is the reference to "incoherent" posts on social media. The incoherence may support the possibility of alcoholic distortion. Most people miss the correct keys after a drink or two, and even Grammarly can’t correct alcoholic distortions exacerbated by the often unfortunate release of long-suppressed resentments fuelled by alcoholic toxicity.

So, not unreasonably, the company security was dispatched to check it out. This was the sequence that followed.

The security official found the employee had turned violent on February 25 and damaged a neighbour’s car. He called the police, who restrained the employee, who was injured during the melee. He was taken to the local hospital, which sent him to St Ann’s Psychiatric Hospital, where he was admitted for a month.

When the month ended, St Ann’s gave him a "fit for work" certificate.

The company policy stated their own doctor had to concur, so they sent him to a consultant psychiatrist, Prof Hutchinson, trained in that field, to determine whether outbursts of violence could recur at work and cause damage to the worker himself, fellow workers, machinery or equipment.

So far, so good. Prof Hutchinson's report said the worker “was not a risk for self-harm or for harming others,” but as he had been away from work for a lengthy period, he should be returned to work in a less stressful position "on probation for three to six months" that would enable his “behaviour and functioning” to be monitored.

After six months, the company doctor reported he still needed monitoring at work and at the St Ann’s outpatient clinic. But after a joint patient-company-doctor teleconference, it was revealed that the company did not have a suitable office-based position consistent with his qualifications and experience.

The company then obtained yet another opinion, this time from from an occupational health specialist, in light of conflicting opinions between the employee’s doctor and the company doctor.

They told him the company was considering terminating him on the ground of ill health
.

I pause at this juncture to consider what the worker’s options entailed. As the union noted, and the company (a state enterprise) did not counter, the energy industry in TT is a small and tightly knit one. Job opportunities are limited, and having been terminated from one energy-based company was not going to be to the worker’s advantage when competing for a technical position in another.

In the teleconference, the worker did not agree with the separation option, and the company advised him of his right to go for a second medical opinion. He did so, and the doctor he then consulted did not agree with the company, and also found him fit to work. The union argued against the separation option.

It argued that over almost ten years the worker had a clean disciplinary record and had done nothing wrong.

The company, however, testified that it had done all it reasonably could have been expected to do.

It had consulted three medical advisers, including an occupational health and safety doctor, when the worker’s chosen doctor disagreed with the company doctor. It was between a rock and a hard place.

The judgment quoted the World Health Organization as saying: "Because of stigmatization and discrimination, persons with mental disorders often have their human rights violated and many are denied economic, social and cultural rights, with restrictions on the rights to work and education.”

It cannot be denied that attitudes towards people with mental disorders, a past history of mental disorders or a suspected mental-disorder tendency that might materialise in the future range from marginally compassionate to brutal in this society.

At work the attitude is generally biased, prejudicial and judgmental. The court itself acknowledged that an employer is not a medical expert and must depend on expert advice, but the decision must be based on industrial-relations principles.

It accepted the WHO opinion that mental illness should be treated in the same way as a physical illness, noting that the ILO Convention 159, as well as TT’s Equal Opportunity Act, include in the definition of “disability” “mental or psychological disease or disorder,” and that such workers are not to be discriminated against by their employer.

The union further accused the company of having no policy to deal with people with a mental disability, which was true. Very few companies in TT have such a policy.

The company contended that it did not have a facility to accommodate him, and authorities quoted agreed the company was not obligated to create a position especially to accommodate an employee in these circumstances, although, since it is a state enterprise, the court implied that it should be able to do so for a period not exceeding six months.

It noted that during the periods of state-dictated covid shutdowns, the worker had been among a group of field workers put on an alternate shift, to prevent cross-contamination by the virus although, in spite of having had a work-from-home policy for administrative staff during that period, it was not feasible, to apply that policy under the current circumstances involving this worker.

So, having considered all the circumstances, including the medical “fit to work" reports, the company separated the employee from its employment, on the ground of ill health, giving him all his accumulated terminal benefits of $172,380, which included the return of his contributions to the company’s pension and savings plans.

In a judgment issued in July 2022, the Industrial Court reported that the union representing the worker took the company to court for unfair dismissal, demanding $10,340,852 in compensation. The court agreed the dismissal was unfair and awarded the worker $1.2 million in compensation.

In summation, the award states: "The court takes cognizance of the efforts of the WHO and the ILO in the area of mental illness, both organisations of which this country is a member. It is reasonable to expect that the way mental illness in the workplace and the society at large is viewed is likely to improve in the future and this would likely enhance the worker’s future prospects of employment.”