Duty To Accommodate On Basis Of Family Status Continues To Evolve

Written on behalf of Arbesman Hamilton LLP

In Canada, employers have a duty to adjust rules, policies,
or practices in order to allow employees to participate fully and avoid being
discriminated against. This is known as the “duty to accommodate.” The duty to
accommodate means that in order to treat people fairly, exceptions may have to
be made in how people are treated. For example, if someone requires the use of
a wheelchair for mobility, an employer may have to ensure that an office space
is navigable for a them. Additionally, an employer may have to provide ways for
people with visual impairment to work through the use of special computer
screens or software. Canadian courts are currently wrestling with to what
extent, if any, an employer has to accommodate people on the basis of family
status.

The background

The employee began working with the employer (who operated a
retirement home) as a personal support worker in 2013. She was terminated on
May 23, 2017. She has two children, who at the time of her termination were two
and five-years-old. The eldest child had autism and it had been determined that
it was essential that he meet with a caregiver at his home each day after
school. The employee’s husband worked Monday-Friday from 8:00-5:00 or
9:00-6:00. The employee was able to meet the eldest child when he returned home
from school on a bus at 3:00.

Prior to March 11, 2017, the employer discussed changing the
employee’s shift from 7:00-3:00 to 3:00-11:00. She communicated via emails that
she was unable to work the later shift because of her children’s schedule. She
didn’t hear back from the employer, and on April 3, 2017 she reached out again,
offering to work a midnight shift that she heard may be available. She saw her
manager later that day and told her she was also looking for alternative child
care options for her children should the midnight shift not become available,
but that someone had to be home between 3:30-4:00 to meet their eldest child.
The manager told the employee should would be able to start working the
midnight shift instead of the 3:00-11:00 shift by the end of May 2017.

The missed shift

The employee became ill on the evening of April 22, 2017 and
phoned in to say she would not be able to work the following day. She also
texted her manager. The manager immediately texted her back to say the employee
had a responsibility to find a replacement and that failing to do so was a
breach of policy. She was also asked to bring a doctor’s note. The employee did
not work on the 23rd, returning for her next scheduled shift on
April 25.

The employee had only missed three or four days over her
four years with the employer. On those occasions, the employer had found a
replacement for her shift after she notified them of her inability to work. She
testified she was not aware of any policy requiring her to find her own
replacement.

Termination

On May 19, 2017, the manager informed the employee that she
would no longer be eligible to work the midnight shift because she had called
in sick without giving enough notice. She was asked to provide availability for
other shifts for the months of July and August.

On May 23, 2017 the manager called the employee and informed
her she had been terminated because of:

1.  “Attendance”;

2.  “Failure to
follow instructions”;

3.  “Conduct”;

4.  “Creating
disturbance [sic]”; 

5.  “Performance”;

6.  “Work
quality”.

No details about any of the reasons were provided, and the
employee testified to having no idea how her performance had provided cause for
her termination.

The court’s analysis

After reviewing the employee’s work history, the Human
Rights Tribunal of Ontario concluded
“the (employer’s) stated reasons for the
termination were not based in fact. The (employee’s) performance was fine. The (employer’s)
reasons were pretextual, and by inference, I find that at least one of the real
reasons for the termination, if not the only reason, was the (employee’s)
unavailability for certain shifts caused by her need to provide care to her
children. Her request regarding her shifts was the only issue that arose during
the time immediately prior to the termination, and the issue was unresolved
between the (employer) and the (employee) at the time of the termination.”

While courts in Canada have been debating over how to test
whether an employer has discriminated against an employee on the basis of
family status, the tribunal in this case decided no test was necessary, and
that no matter what standard the employer should be held to, they ad
discriminated against the employee, who was awarded $30,000 in compensation.

At Arbesman Hamilton
LLP
we work with both employees and employers in matters relating to
employment law, including advising our clients on problems that may arise during
employment. We help employers safely navigating discipline and/or
terminations. We also skillfully represent employers and employees at litigation and
dispute resolution where necessary. Please reach us online or by
phone at 416-481-5604 to discuss
your employment law matter today.