Accommodating a mental disability in the workplace, as is required by human rights legislation across the country, can be a very tricky business, as one British Columbia retailer recently found out.

Sandy had worked in the floral department of a large retail store for about seven years when the problems began. Her employer found her increasingly difficult to deal with. A directive to start working some Saturdays had to be delivered to her in writing to ensure her compliance. She refused to sign a performance review and development plan that she perceived to be unfair. Other people found her to be moody and irritable. It was not unusual for her to receive a direction from her manager and instead of just carrying it out, checking with other managers or employees to see if the direction was being consistently applied. Management found this divisive and insubordinate. She was spoken to and cautioned.

In 2009, Sandy took two months off as a result of "stress leave". Her immediate manager knew she was suffering from depression.

After two months of absence, Sandy handed in a doctor's note clearing her for a return to work and requested no particular accommodation or consideration. A few months after Sandy's return, she again questioned a direction from her manager by going to another manager. This was the last straw and her employement was terminated.

Sandy filed a human rights complaint, claiming she was terminated as a result of her disability. The adjudicator found while Sandy should have made clearer the exact nature of her condition and how her depression and anxiety disorder affected her moods and behaviour, the employer should have done more to find out what was going on before firing her.

The adjudicator indicated since the employer knew Sandy suffered from anxiety and depression, it should have taken steps to investigate whether the behaviour that was endangering the working relationship was somehow attributable to that condition and investigate ways to accommodate that behaviour. That is in fact the employer's obligation at law. Even though her doctor had cleared her for a return to work without conditions, the employer is expected to conduct even more due diligence if it knew or ought to have known the performance issues were health-related.

Theoretically, they could have sent her back to her doctor and asked for feedback on whether the doctor thought the issues were health-related. If the answer was no they could then discipline or terminate. If yes, they needed to investigate how they could accommodate Sandy.

The employer argued it was a bona fide occupational requirement that all employees, regardless of their medical conditions or background, be willing and able to comply with the policies of the employer, including the insubordination policy. The adjudicator dismissed that argument, however, because the employer did not provide any evidence it would be an undue hardship to tolerate someone in the workplace who is insubordinate.

Sandy was awarded six months' lost wages and $5,000 for injury to her dignity. Anyone reading this decision would be left somewhat confused by what the employer was supposed to have done. It is probably true they should have done more to find out if Sandy's behaviour was attributable to her disability. The only accommodation I can imagine, however, would be to send her home until she obtained further treatment and had these behaviours under control. Why would anyone have to provide evidence that you can't have a consistently insubordinate and irritable employee remain indefinitely in the workplace? The decision implies they may have been required to tolerate this behaviour as an accommodation.

Human rights legislation has done a lot of good for a lot of people in many workplaces across the country. Sometimes, however, confusing decisions such as this one can leave employers scratching their heads and wondering just how far they have to go to avoid a successful human rights complaint.