An award from June 29th of last year was just published in which Arbitrator Michel Picher held that an employer was not justified in directing an employee who had made a concerning outburst to a psychiatric assessment.
The employee was a 26-year mechanic who became frustrated about the theft of his tools. The company alleged he told a manager that he, “was bringing in a knife, and that the next time someone touches anything of his he will cut their hand or head off.” He later said he would pray that the manager and his family would answer to God. The company referred the employee to its OHS physician, who recommended that the employee attend an IME. This led to a lengthy dispute that came before Arbitrator Picher five years later, after the parties agreed the employee would be reinstated; they argued only about the terms of reinstatement, including whether an IME would be a condition of return.
Employers faced with concerning behavior are in a dilemma, and should never be too confident in their own ability to assess an employee’s disposition to commit an act of violence. This case is notable as highlighting the requirement to have a reasonable basis for requiring a psychiatric assessment, but the finding is very qualified. Arbitrator Picher noted that the employee had supported his rejection of the IME direction by submitting medical evidence from his own physician, evidence that the company appeared not to answer in the arbitration. He also noted that the precise statement made by the employee was in dispute, and the employer did not bring the manager to the hearing. Finally, Arbitrator Picher ordered the employee to be reinstated without compensation. In a way, the employer got what it wanted: an independent review of the circumstances prior to reinstatement.
The Canadian Pacific Railway and CAW-Canada, Local 101 (M. Picher, 29 June 2011).