Monday, November 27, 2006

Michelle Dawson v Canada Post Corporation - Autism Not an Occupational Safety Hazard

In Michelle Dawson v Canada Post Corporation, Decision No. Decision No.02-023
October 23, 2002 of the Canada Appeals Office on Occupational Health and Safety the appellant Michelle Dawson refused to work and attend a medical appointment required by Canada Post Corporation following an injury on duty absence. Ms. Dawson is autistic and complained that CPC had not given her sufficient prior notice of the medical appointment in writing to prepare for it. A Health and safety officer investigated the refusal to work and decided that a danger did not exist for Ms. Dawson. Ms. Dawson appealed the decision of no danger to an appeals officer pursuant to section 129(7) of the Canada Labour Code, Part II. Under that section an employee can refuse to perform work if it constitutes a danger to that employee.

The investigator had concluded that the direction to attend a medical appointment did not constitute a danger within the meaning of that section of the Canada Labour Code. Michelle Dawson disagreed and appealled providing information regarding her autism disability, the events that led to her refusal to work and the nature of the danger related to her disability. She disagreed with health and safety officer Tran’s conclusion that the requirement to submit to a medical appointment following a leave of absence does not constitute an activity as set out in the Code and so a danger under the Code did not exist.

The appeal board rejected Michelle Dawson's appeal and concluded that: "Under the Code, Ms. Dawson’s autism and related factors may be considered in respect of a danger connected with the use or operation of a machine or thing, a hazardous condition that exists in a work place or the performance of a work activity. However, where the hazard related to an activity is linked solely to the employee’s own medical condition, as in this case, it is not a danger covered by the Code."

It is not clear from the decision why Ms. Dawson felt that a direction to attend a medical examination posed a danger to her because of her autism. Had Ms. Dawson's argument been accepted though it might have been used by federally regulated employers to deny workplace opportunities to employees with autism.


Michelle Dawson said...

That is an extremely and deliberately misleading subject line.

I had a better safety and work record than most Canada Post letter carriers, and maintained this for a long time. It was recognized, e.g., that I could work safely, accurately and quickly in hazardous conditions that my co-workers refused to work in.

This case involved an illegal (no legal or contractual basis, no credible reason of any kind was ever given) expertise which was scheduled in many contradictory ways, including without notice. Notice was required, both under the law and under the collective agreement.

Provincial but not federal jurisdiction workers are protected from this kind of harassment under a provincial law (ARIOD, administered by the CSST). This kind of harassment, in my case, set precedents such that no one knew what to do or how to apply the law.

For example, apart from never agreeing with themselves over why an expertise was being demanded (only about half the time was I told it had something to do with the short, long-ago work accident), Canada Post management threatened me with disciplinary action if I refused to see a doctor who did not exist. This "doctor" was not listed as a doctor anywhere in Quebec, and it turned out that indeed, he did not exist.

Throughout the time of this case, and long after, I was at work and doing my job to the usual "exemplary" (Canada Post's word, in writing) standards. My attendance record was recognized as superb, with extremely infrequent absences for any reason.

The expertise was never related to autism, though multiple conflicting reasons for this expertise were given by Canada Post. Sometimes different reasons were given on the same day, as the threat continued for months. The duly certified injury on duty leave lasted 4 days and was my first declared work accident for 8 years. Canada Post failed to ask for an expertise within the time allowed for by the CSST's law (ARIAOD), but continued to demand an expertise for months after the time allowed, though for multiple different and contradictory reasons not founded in any contractual or legal right on their part.

I don't know about the autistics Mr Doherty works with, but it has been very dangerous for me and many other autistic adults to see health-care professionals who have no knowledge of autism--the kind of professional I was being forced to see. This was regardless that it was suggested (by doctors) that I see doctors who were knowledgeable in autism, something I would have been willing to do if a credible reason were provided for an expertise. Instead, the suggestion that I see doctors who had some familiarity with autism (doctors I had never seen before and didn't know of) was rejected by Canada Post.

The obstacle to employment for autistics here is not a failed attempt to protect us from being put into danger via gratuitous threats of an illegal medical expertise. The obstacle comes from a psychologist (a behaviour analyst) who recently informed Canada Post at the national level that there is nothing good about autistic people. This psychologist promoted a dire view of autistics as being less than human (e.g., we have no emotions) and good for nothing (e.g., if we have any abilities, we use them in totally useless ways), which Canada Post took and continues to take to heart. Yes, this psychologist was prosecuted for her grossly biased presentation and for conflict of interest (I was her client) by the Quebec Order of Psychologists, but it was already far too late. Having a long-standing excellent work record, including in the area of safety, does not protect you against this kind of professionally-promoted prejudice.

All of the above has been testified to, complete with hundreds of pages of evidence (some of it publicly available), at the Canadian Human Rights Tribunal, in the first autism-related case referred for a hearing there. This case is the result of my revealing my diagnosis to Canada Post after 11 years of service, and succeeds a previous Canadian Human Rights Commission case that was settled in my favour.

Unknown said...

Despite your accusation there is nothing at all misleading about the subject line. For your information I have practiced in various areas of labour law for 22 years including 2 years as an advisor to the Canada Labour Relations Board and 5 years with Canada Post on his behalf I appeared and argued exactly these issues. You can find one of these cases reported on line at:

In the Dawson v CPC you argued that the direction to attend for a medical examination constituted a safety hazard - because of your autism. The investigator and the appeal tribunal both rejected your position and concluded that your disability (autism) was not a danger or hazard created by the workplace.

I have no comment on your human rights cases. If you wish to email me the decisions I would be happy to review them and comment if you wish.

Alyric said...

And the whole point of this post is what exactly?

If I'm reading this right, it appears that you wish to use a highly unconventional case, which is private to Ms Dawson by the way, as an example of creating workplaces unfriendly to autistics, based on your private interpretation of events.

Well the other side is that there are quite a few documented irregularities on the part of Canada Post- among them requiring 'expertise' from a non-existent medico - now there's chutzpah and proof that they weren't averse to using underhanded tactics to undermine Ms Dawson's position. And with the current views of autistics, they must have thought it was like shooting fish in a barrel.

There was an eerily similar case in California last year. Disclose a diagnosis and sooner or later, some person will decide that they feel really uncomfortable with working with this weirdo. That weirdo had 12 years of exemplary work record up to disclosure - just like Ms Dawson. Same underhanded tactics and three years later the Community College got a well deserved blast. You have no idea the amount of work it took to get 'justice' in that case.

Canada Post and the Community College in California are both prime examples of the reaction that autistics face all too often. It's called discrimination and I'm somewhat surprised that you seem to be in favour of it. Or, at best, that you think Canada Post have been totally honest and upright in this. Why take their side so uncritically?

You need to get in practice for your own child. It's odds on that he or she is going to need your skeptical best. It's a fact of autistic life, starting in school that autistics with alarming frequency attract the predators. I've seen no evidence that this phenomenon ceases abruptly on entering the workforce.

Experience suggests that it does not and the situation is generally exacerbated by that well known 'socially wired' trait of not making waves, just in case someone higher up the food chain gets upset. So, once the predator goes to work, the situation escalates to horrible levels without let up or hindrance.

I will be relocating to Canada for a few years as of next year. I do hope that this isn't a move in the wrong developmental direction for my ASD offspring.