Workplace Issues & the Mentally Disabled Employee

A mental disability does not mean that such a person cannot perform admirably in the workplace. Often that indeed is the case. The issue becomes more important in situations which may require accommodation. A mentally disabled employee submitting their resignation is one such situation.

That said, human rights vulnerability is not the only hole into which the employer may step. There are three actually:

1. Human rights as stated; and
2. Insurance law obligations imposed upon the employer; and
3. The law of negligence.

These three subjects will be reviewed in this order.

A. Human Rights Obligations

A few words first about Accommodation.

Human resource managers and lawyers often speak of the need to accommodate a disability, or indeed any protected human right.

The obligation of accommodation is not limited to disability issues. It applies to all protected human rights. ³

Understanding the Duty to Accommodate is an important step in dealing with disability issues.

There are two ways in which this issue may be examined. The first is the legal tests in the world of human rights decided cases and the second is in the application of these principles on the “shop floor”.

Legal Test in Human Rights Cases

In the human rights hearing process, the applicant must first present a “prima facie” case.

Once that is shown, then the employer must, where appropriate, show that it has accommodated the human rights issue to the point of undue hardship.

If the applicant has failed to show this prima facie case, then the question of accommodation will not arise. The claim will fail. ⁴

How the Duty May Arise

The duty to accommodate may arise in a variety of factual circumstances.

01 Employer Workplace Standard

One common example arises when the employer sets a workplace policy. For example, the employer sets a rule all truck drivers be male, under the age of 50 and be able to lift packages up to 50 pounds.

In examining such a rule, the test is:

1. Is there a job related purpose ?
2. Is this effected in good faith?
3. Is this required for a legitimate work-related purpose?

It is within this third step that the duty to accommodate arises. To prove that the standard is reasonably necessary, it must be shown that it is “impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer”.  ⁵

In this example, the employer will likely be able to pass the first two tests, but will fail on the third. Clearly the rule will need to be accommodated for female workers, people over the age of 50 and likely the strength requirement, where appropriate, will stand.

02 Day to Day Workplace Issues

The issue of accommodation may also arise from events which take place in the workplace unrelated to an existing rule.

For example, Mary asks to leave work early as her mother is suffering from a sudden medical emergency. Mary is the sole family member available to attend to her immediate needs.

Mary will likely require accommodation as she is a member of a protected group, invoking family status, she will suffer adverse consequences should she not be accommodated such as losing her job or discipline and the employer will very likely be unable to show undue hardship.

Take as another example, the employee argues that he suffers from a mental disability which requires time off work due to a sudden anxiety issue. The employer refuses this request as, for example, it is summer hours and too many employees are on vacation, we are short-staffed and need this position to be filled.

There will be a need for accommodation in these instances as the employee (1) is a member of a protected group and (2) he will suffer adverse consequences should he be treated adversely due to this action (3) and this action has been influenced by a human rights issue. Note: not caused by a human rights issue, influenced.

This will now raise the issue of accommodation. The employer must then show it has accommodated to the point of undue hardship. This will be very unlikely to succeed in this example.

As noted below, the employee must be an active participant in the accommodation process.

Manner of Accommodation

When considering ways in which an individual’s capabilities may be accommodated, “employers, courts and tribunals should be innovative yet practical when considering how this may best be done in particular circumstances”. Some issues to be addressed will include the following:

1. Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard?
2. If alternative standards were investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?
3. Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established?
4. Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose?
5. Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?
6. Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles? ⁶

Defining a Mental Disability

Perception

Human rights law recognizes that the perception of a mental disability will qualify to allow for jurisdiction. This concept applies to all protected human rights. Perception is enough.

The Statute

Each jurisdiction will also define in its statute a “mental disability” but the definition is generally open ended. For example, the Alberta statute defines this to be:

(iv) learning disability or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(v) condition of being mentally impaired, (vi) mental disorder, or (vii) dependency on drugs or alcohol;

Ontario is similar: It defines mental disability as follows:

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder…

Evidence to Show the Disability

The applicant must then present medical evidence to show that they suffer from such a disability.

The employer must also be aware by direct information provided by the employee that they suffer from a medical disability or the context, objectively viewed, shows that the individual by their erratic behaviour suffers from a medical disability which has led to this conduct.

Volpi v LifeMark Alberta Human Rights Tribunal June 2026

The Facts

The complainant suffered from a condition known as Bipolar II Disorder. This was clearly a mental disability and was hence a protected human right.

Over a period of time, Volpi experienced increasing mental health difficulties and repeatedly requested time away from work. He advised management that something was wrong and that he required time away to avoid a relapse.

After being denied the additional leave he sought in the summer of 2016, the employee abruptly submitted a brief two-line resignation. Medical evidence later established that he was then experiencing a hypomanic episode.

The employer accepted the resignation without making any meaningful inquiry into whether the resignation was connected to the employee’s mental disability. Even after learning that the employee had been hospitalized following the resignation, the employer did not investigate whether the resignation was the product of the employee’s mental illness.

Volpi later asked the employer to allow him to return to his prior position. The employer’s response was that he may submit an application in the normal course.

Employer’s Duty to Investigate

The Tribunal concluded that the employer had adversely treated the employee by failing to inquire into the connection between his disability and both his request for leave and his later resignation. The Tribunal emphasized that where objective indicators suggest that disability may be influencing an employee’s conduct, an employer must pause and make reasonable inquiries before taking adverse action.

The significance of Volpi extends beyond its specific facts. The decision recognizes that an employer may have a positive obligation to investigate whether a resignation is truly voluntary when there are objective indications that a mental disability may be influencing the employee’s decision-making.

Liability was found. Damages were later assessed at over $1 million.

Mental Disability Unique

The usual rule engaging a duty to inquire requires that the employee request accommodation. A mental disability is considered an exception to this rule. Where the employer knows or reasonably should know that there is a connection between the employee’s conduct and a disability, there will be found such a duty to inquire.

Factual Context

Each case involving this issue will be factually dependent. For example, unusual behaviours such as a change in conduct, or a sudden emotional outburst, may signal a need for such an inquiry. ⁷

Employer’s Knowledge of the Disability: Request for Leave

To be charged with this duty to inquire, the employer (1) must be aware of the existence of the disability or (2) should reasonably have been aware, given the factual context.

For example, in Volpi, the Tribunal noted these facts to show that the employer should have been aware of the existence of the mental disability and that this was the reason for his first request for a medical leave:

1. showed signs of stress and burnout;
2. V had just returned to work after one week off and immediately asked for a second lengthier time off work, which V connected to his mental health;
3. V told his immediate boss, Singh, that he had made similar requests for time off in the past to the Clinic Director;
4. Singh had been made aware in the past by the Clinic Director of V’s past issues in dealing with stress;
5. himself had raised to Singh the possibility of him providing a medical note to support his request for a stress leave.

In Volpi, all these factors were found cumulatively to support the duty to inquire. The last point, in particular, was seen as significantly important.

Duty to Inquire on Receipt of Resignation

In Volpi, these facts were considered to assess whether the company should have been aware that the resignation was due to a mental disability and hence raising the duty of the employer to make inquiries:

1. The complainant was still exhibiting signs of stress and burnout;
2. The complainant had asked for a significant amount of time off as a result;
3. The respondent had approved some time off, but at a significantly later date than had been requested by the complainant
4. The complainant was set to begin that time off the day following his resignation (i.e., September 30, 2016 was the complainant’s last day of work prior to his leave which was scheduled to start October 1, 2026);
5. Rather than go on his leave as planned, the complainant hastily submitted a two-line resignation letter with a spelling mistake;
6. If accepted by the respondent, the complainant’s resignation would mean the end of 16 years with the respondent, where the complainant had such a lucrative and successful career that Singh described one of his main duties as ensuring that the complainant did not leave;
7. Singh [V’s boss -ed] was “shocked” by the resignation letter;
8. Others within the respondent (at least Head – Director of the Clinic – ed) knew of the complainant’s mental health history;
9. After submitting his resignation, the complainant continued to see patients until the end of his shift, had patients booked following his leave, and did not take any of his personal belongings (other than the backpack he generally brought back and forth with him).

These facts demonstrated that the company reasonably should have known that V’s mental health contributed to his resignation and that it should have made further inquiries.

On the same day of V’s resignation, V also emailed the Director of the Clinic who again made no inquiries as to V’s mental health.

V resigned on September 30, 2016. He messaged the employer on October 8, 2016, referencing his “burn-out” and his complex reasons for resigning, still the company took no steps to inquire.

V was hospitalized in March of 2017, which was known to the company. He then asked to return to the employ of the company, and once again,  no inquiries were made.

Other Cases Dealing with “Ought to Have Known”

Factual Context in Pratt

This issue was also addressed in Pratt v U of Alberta.

Carmen Pratt began the permanent position on March 1, 2012. Three weeks later, her brother died by suicide. The University subsequently developed concerns about her concentration, attitude, focus and performance.

The University conceded at the hearing that Pratt had been suffering from a mental disability when dismissed. Its defence, however, was that it did not know this at the time because she had not:

expressly identified herself as disabled;

supplied medical documentation; or

formally requested “disability accommodation.”

The Tribunal rejected that position.

The Tribunal accepted that the University knew or had been told that:

1. Pratt’s brother had died suddenly and unexpectedly;
2. she had said she was unwell and needed time with her family;
3. she had attended a doctor’s appointment;
4. she was tired and having difficulty concentrating;
5. an operational supervisor had referred her to the Employee and Family Assistance Program;
6. she had attended counselling and was returning to counselling;
7. she had been emotional during the performance-management period;
8. she could not absorb written information;
9. “nothing sinks in” when she read;

• she could not perform tasks requiring creativity, imagination or sustained concentration;
• she wanted to perform repetitive work and work involving less interaction with others.
• The critical event was the June 26 meeting. Pratt described specific cognitive limitations, linked them to what was happening in her life and asked, in substance, for modified duties. Her supervisor understood the limitations well enough to report them accurately to senior management the following day.

The Tribunal characterized the employer’s interpretation—that Pratt was merely uninterested in her job—as unintelligible. She was plainly explaining that her mental capacities were impaired and identifying work she could and could not perform. That information triggered a duty to inquire, even though she did not use a diagnostic label. The termination decision “crystallized” the next day.

The Tribunal found that the University should have paused the termination process and requested medical information concerning:

1. whether Pratt had a medical condition;
2. her functional limitations;
3. the anticipated duration of those limitations; and
4. possible modifications to her duties.

Merely checking whether she already had a file with the University’s health and wellness department was insufficient. The procedural duty to accommodate required an actual inquiry directed to the limitations she had disclosed.

The Tribunal found discrimination, awarded $20,000 for injury to dignity, $34,795.40 in lost wages plus interest, and ordered reinstatement into an equivalent Grade 6, Step 1 position, subject to a new six-month probationary period.

The Tribunal noted that the duty to inquire is intensely fact-specific. Sometimes a gradual behavioural change will suffice; sometimes one dramatic emotional event will be enough. Conversely, poor performance, absenteeism or difficult behaviour will not automatically require an employer to suspect disability.

These cases show similar factual contexts giving rise to the finding that the employer ought to have known of the disability.

Case	Facts	Decision
Kvaska v. Gateway Motors (Edmonton) Ltd. Alt HRT 2020	The employer knew of an alcohol-related driving offence; visible and repeated impairment was observed by staff; a manager warned Kvaska about drinking; he asked about medical leave and obtained disability forms; he attended work severely intoxicated; his spouse told the general manager he had a drinking problem, to which the manager replied that 'everybody knows'; and Kvaska directly disclosed addiction and requested rehabilitation before termination. The employer treated the incident solely as misconduct, did not inquire into the relationship between addiction and conduct, and did not investigate medical leave, rehabilitation, continued benefits, or other accommodation options.	Alcohol addiction was a factor in the termination. The employer had a duty to inquire before termination and failed to accommodate to undue hardship. Kvaska received $30,000 general damages, short-term disability benefits, and six months' lost wages. Even serious prima facie misconduct may require inquiry where known facts suggest addiction affected the employee's capacity to comply with the rule. The employer need not tolerate ongoing intoxication, but it must investigate treatment leave and other safe accommodation options.
Lethbridge Industries Ltd. v. Alberta (Human Rights Commission), 2014 ABQB 496	The employer knew the employee was taking prescription medication and believed it related to mental-health problems. The employee had taken approximately one month off to have the medication evaluated, and the employer assumed the leave related to mental health. Disability-related absences were then used in applying an attendance standard and terminating employment.	The employer knew or at least suspected a mental-health disability. It could not treat disability-related absences as ordinary attendance failures without accommodation.
Stewart v. Ontario (Government Services) Ontario HRT 2013	The employee had not expressly told management that she was disabled or depressed, but she visibly cried at work, and managers asked whether she was aware of employee-assistance services.	Visible emotional distress, together with management’s own suggestion of counselling or employee-assistance services, was capable of supporting employer awareness. The claim could not be dismissed summarily.
Zaryski v. Loftgard	The employee had become moody, irritable and unable to get along with coworkers. The culminating incident involved agitation, yelling, screaming and dissolving into tears. She said she would take a sick day. Before the dismissal was completed, her husband told the employer she had gone to see her doctor.	The employer knew she was in a “delicate emotional state.” Once told that she had attended her physician, the employer had to inquire before proceeding with termination. Refusing to consider possible illness because the decision had already been made was discriminatory.
Sylvester v. British Columbia Society of Male Survivors of Sexual Abuse BCHRT 2002	The employee was absent for several days and then sent a handwritten note stating that she would be taking medical leave. She did not identify the diagnosis and supplied no supporting medical documentation before the termination decision.	The medical-leave note alone was sufficient to require reasonable inquiry. An employee need not disclose the precise nature of a mental disability before an employer’s duty can arise.

The following cases found that the employer was not, on the facts, required to inquire as to the individual’s mental status:

 

Cases Finding No Employer Duty to Inquire or Accommodate
Case	Facts Known to Employer	Information Not Provided	Reasoning	Practical Rule
Berridge v. City of Calgary Alb HRT 2007	The employee had previously been diagnosed with cancer, had received long-term disability benefits, and later had a number of genuine health-related absences. Management sent several attendance warnings.	The employee did not identify a current disability, explain that the absences reflected an ongoing disability, request accommodation, or provide pertinent information. Supervisors and co-workers did not observe behaviour suggesting a disabling medical condition.	No sufficient employer awareness of a need for accommodation. There must be evidence that the employer knew or reasonably ought to have known of the need for accommodation. An employee ordinarily must provide at least general information about the problem and the accommodation required.	A past serious illness or repeated bona fide absences does not automatically trigger a duty to inquire where the employer is not given information connecting the current workplace problem to a disability.
Rezaei v. University of Northern British Columbia (No. 2) 2011 BC HRT	The associate professor was regarded as disruptive, and his behaviour adversely affected the workplace.	Before termination, neither the employee nor the employer knew that the conduct was caused by a mental disability. The diagnosis and causal explanation emerged only after dismissal.	The duty to inquire into an undiagnosed disability depends on the information actually available to both sides. Disruptive or difficult conduct, without additional health-related indicators, does not necessarily alert an employer to a mental disability.	An employer is not required to diagnose every instance of misconduct, conflict, or poor behaviour. There must be surrounding facts reasonably suggesting that disability may be involved.
Burgess v. Stephen W. Huk Professional Corporation 2009 AHRC 8; upheld 2012 Alberta KB	The complainant was pregnant and was a practising Mormon at the time of termination.	The employer had no knowledge of the pregnancy or religion, and the employee had not provided even cursory information that would connect either protected characteristic to a need for accommodation.	An employer cannot be expected to accommodate facts of which it is unaware. The employee must provide at least some pertinent or cursory information concerning the protected need.	The duty to accommodate is cooperative. An employee cannot remain entirely silent about a non-obvious protected need and later fault the employer for failing to accommodate it.

Employee’s Duty to Co-operate

Should the employer, once aware of this issue, request from the employee medical support for the disability, the employee will have a duty to comply. It will be preferable for the employee to volunteer this detail, but when the employer does not request it, the duty will not arise.

An example of the failure of the employee to co-operate in the accommodation process is found in a decision of The Alberta Court of Appeal. It upheld the decision of the Human Rights Commission not to allow the complaint proceed to hearing where the applicant did not accede to the employer’s request for additional medical information. ⁸

Intent Not a Factor

As is the case for all human rights issues, apart from reprisal, intent to discriminate is not required to be shown, as long as the consequences of the employer’s action results in adverse treatment.

Common Law Test of Resignation Not Applicable

In the Volpi case, the both parties made submissions based on the common law test of a resignation as to whether this was given freely and without inducement. This, however, is not the correct test when considering a human rights violation based on mental disability. The test is simply whether the resignation offered by the employee and the following acceptance of it had an adverse impact and also whether the mental disability was a factor in such adverse impact.

Nature of the Inquiry

In Volpi, the immediate manager, Singh, having received the resignation letter, then asked V whether there was anything he could do to change his mind. This fell far short of the duty to inquire, as the Tribunal found. The company could have refused the resignation or could have asked for medical evidence or made other inquiries as to his mental health.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3. BC (Superintendent of Motor Vehicles) v BC ( Council of Human Rights) “Grismer”.¹

   It does arise frequently with respect to disability cases which often are the subject matter of the leading cases on this topic.

   A vivid example is the 2020 case of the ski patroller who was denied continued employment due to an alleged physical inability to perform the job. The employer failed to even allow the applicant to be tested to determine her physical capacity. There was no need to “test the test”, as there was a complete failure to accommodate. The applicant was allowed compensatory damages of $25,000 and a lost income claim of  $54,472. ² Sunshine Village Corporation v Boehnisch

4. Baber v York Region School Board; Tang v McMaster
5. Coast Mountain Bus v CAW Canada
6. As Sopinka J. noted in Renaud, at pp. 992-96, the task of determining how to accommodate individual differences may also place burdens on the employee and, if there is a collective agreement, a union.
7. Pratt v U of Alberta
8. Poddubneac v Alberta (Human Rights Commission)