[author: Adrian Miedema]
In an unusual case, a psychiatrist has decided to disclose, to an employee’s employer and the police, a threat made by the employee against the employer in a confidential psychiatric treatment session. And an arbitrator has held that the employer was entitled to rely on that disclosure in deciding to dismiss the employee.
The employee was a “residential counsellor” for an organization that operated group homes for persons with “intellectual disabilities or mental health issues.”
A psychiatrist treating the employee decided that she was obligated to breach confidentiality and report to the police that, during a session with the employee, he had made statements that she interpreted as a threat that he might do something serious to harm some members of senior management of his employer.
The arbitrator hearing the employee’s dismissal grievance decided that it made no difference that the employee made the threat “in the context of a therapeutic relationship with someone he thought was bound by strict rules of confidentiality”. This was not a criminal case involving the Canadian Charter of Rights and Freedoms. The employee “said what he said”, and it continued to have an impact on the feelings and emotions of some of the employee’s immediate supervisors. The employer was entitled to rely on the threat in disciplining the employee.
However, the arbitrator held that the employer did not have just cause to dismiss the employee. His threat was not made directly to the employer, but rather was made in a therapeutic session, as a “cry for help”. Further, an assessment of the employee found that he was not a current threat and he was able to return to work. However, the arbitrator imposed strict reinstatement terms on the employee, including that he continue taking certain medications, attend certain treatment sessions, and that the employee authorize his therapist to report whether the employee is attending treatment sessions and making good faith efforts to participate in the therapy.
Canadian Union of Public Employees, Local 2330 v Highland Community Residential Services, 2012 CanLII 51837