THE EMPLOYERS' EDGE
The Only Thing Certain Was The Outcome: Human Rights Tribunal Finds Employer Discriminated Based On Family Status, But Does Not Apply Either Competing “Test”
Employers have a responsibility to accommodate employees’ family status obligations up to a point of undue hardship. The Human Rights Tribunal of Ontario decided in Simpson v. Pranajen Group Ltd. o/a Nimigon Retirement Home that the Applicant was subject to discrimination, but declined to apply a particular test for family status discrimination in its analysis.
It should be noted that the employer chose not to participate in the hearing. It was a bold strategy that CCPartners does not typically recommend, because a respondent who does not file a response is deemed by the Tribunal to agree with the allegations made against it.
The Applicant worked as a personal support worker in the employer’s long-term care facility for about four years until her termination in 2017. At the time of her termination, she had two children, aged 2 and 5. The older has autism, and it was necessary that a caregiver meet him at the Applicant’s home where the school bus would drop him off every day. The Applicant was the only caregiver, out of several family members, with the availability to be home for the son. However, she required accommodation from her employer in terms of a straight morning shift for work.
The employer knew that the Applicant’s older son required special care. In March 2017 when it considered changing her shift, the Applicant sent an email explaining that she required the earlier shift, or a midnight shift, in order to provide proper care for her son. She was approved for the midnight shift, to start at the end of May 2017.
Later in April, the Applicant fell ill, and telephoned a supervising RPN at work to advise she would not be in the following day due to illness. She then texted the employer, who in turn immediately warned the Applicant that she had neglected her responsibility to find a replacement for herself, and was in breach of “a policy”. The Applicant was also directed to provide a doctor’s note prior to her next shift. The Applicant had only missed three or four shifts due to illness in her tenure with the employer, and always took steps consistent with her efforts in April 2017. She was unaware of any policy requiring her to find her own replacement.
In May 2017, the Applicant met with the employer to discuss her work schedule, and she was advised that she would not be getting the midnight shift after all. When asked to provide her availability, the Applicant of course indicated that she was not available for certain late afternoon shifts.
The employer shortly thereafter terminated the Applicant, for unexplained reasons including: attendance, failure to follow instructions, conduct, creating disturbance, performance, work quality. The Applicant made her claim to the Human Rights Tribunal, alleging that she was in fact terminated at least in part due to her need for accommodation based on family status.
The Human Rights Tribunal agreed, stating that there was no justification for the termination. It held that the employer could easily have accommodated the Applicant with the midnight shift, and that its withdrawal of that offer was arbitrary, unreasonable, and unfair, making “no allowance for the applicant’s childcare responsibilities in their determination that her scheduling requirements justified termination.” But did it constitute discrimination?
Two lines of cases have emerged in recent years concerning a test to establish discrimination on the basis of family status. In 2016, the Human Rights Tribunal of Ontario issued its decision in Misetich v. Value Village Stores Inc. (our blog here) in which it stated, in essence, that an applicant only need to establish that he or she is a member of a protected group based on family status, has experienced adverse treatment, and the family status was a factor in the adverse treatment. This is in contrast to the Federal Court of Appeal’s 2014 decision in Canada (Attorney General) v. Johnstone (our blog here) added another factor, that the applicant must have attempted to “self-accommodate”, to no avail.
In the current case, the Human Rights Tribunal did not see fit to pick an applicable test. Instead, it said in part:
 Whether I apply the test of the Federal Court of Appeal in Johnstone, above, or the test as set out in Misetich, above, I come to the same conclusion.
 The applicant was in a parent and child relationship, thus invoking her membership in the group identified by family status. The applicant experienced adverse treatment when she lost her job, and one of the reasons for the termination, if not the sole reason, was that she was unavailable for afternoon shifts because of her childcare requirements. As noted above, the reasons provided to the applicant for her termination were a pretext and not based in fact. The respondent arbitrarily, unfairly and unreasonably withdrew its offer to accommodate the applicant’s childcare needs with the midnight shift and then subsequently terminated her employment. There was no evidence that accommodating the applicant’s family status would have been undue hardship for the respondent. Consistent with Misetich, above, I conclude that the respondent discriminated against the applicant because it failed in its duty to accommodate the applicant’s needs arising from her family status.
 Even if the Tribunal would be wrong to apply a test different from Johnstone, above, I find that the applicant also met the Johnstone test in establishing discrimination because she tried to “self-accommodate” by trying to access full-day childcare so that her children would be looked after while the applicant and her husband worked. She maintained her name on various daycare lists, including the regional government’s list which covers many daycares. She also used her parents-in-law for childcare as much as they were able to provide childcare. I find that the applicant, both mother and guardian of her children, had the legal responsibility to provide childcare for them, and, despite reasonable efforts to find an alternative, no alternative to herself caring for her children in the late afternoon was reasonably accessible. I find that the respondent’s expectation that the applicant work in the late afternoon interfered in a manner that is more than trivial or insubstantial with the fulfillment of the applicant’s childcare obligation.
As a result, the Tribunal ordered the employer to pay the Applicant $30,000.00 as monetary compensation for injury to dignity, feelings, and self-respect.
While it would be nice to have a clear direction from the Tribunal on what test it intends to apply to claims of family status discrimination going forward, employers can at least take away a lesson on the kind of treatment that violates the Human Rights Code on either test. Requests for modified work schedules by employees who have childcare obligations are quite common, and typically will only create undue hardship in certain circumstances. Employers are well-advised to receive such requests in good faith, and make honest efforts to accommodate them.
The lawyers at CCPartners have significant experience in crafting accommodation plans, identifying the limits of undue hardship, and responding to allegations of discrimination where necessary.
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