Here is another case in which an arbitrator held that an employer did not have grounds to order an employee to attend a psychiatric assessment. Ontario Arbitrator Nimal Dissanyake issued his order on April 3, 2012. He was driven by a number of factors:
- the employee had demonstrated a pattern of angry behavior, but had not made an express or implied threat;
- the employer did not base its assessment direction on input from a company physician/advisor;
- the employer’s decision-maker admitted that he (simply) had doubts about the employee’s mental health; and
- the employer disciplined the employee for the same behavior that caused it to issue its assessment direction.
While Arbitrator Dissanyake rejects “a technical rule that conduct that had been the subject of discipline in the past may not be relied upon in requiring an IME,” his reasoning suggests that basing a discipline charge and an order to attend an IME on the same behavior is problematic. While employers should be careful about picking their means of managing aggressive or angry behavior in the workplace, question whether an employee can have the mental capacity to commit a workplace offence and, at the same time, have a mental condition that (on reasonable grounds) requires assessment.