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.

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