The debate of the correct test to use to determine the validity of a family status regrettably remains in controversy. The Federal Court of Canada has imposed a higher standard requiring that the relevant alleged offensive rule engage a person’s legal responsibility whereas that of the Human Rights Tribunal of Ontario does not impose such a high standard. The Ontario cases have also concluded that, unlike the Federal Court decision, that there is no obligation to self-accommodate as a preliminary step.
This issue remains one in need of a Supreme Court decision to resolve these differences.
The latest decision of the Tribunal does not attempt to resolve this conflict but is nonetheless illustrative of the steps to be taken by the employer to be compliant with childcare obligations. The Tribunal concluded that the relevant test was academic as the higher standard had been met.
The complainant was the mother of an autistic child and was required, as the sole caregiver, to be present when the school bus returned her son to her residence at the end of the school day.
The employer had proposed a new schedule that would have interfered with this obligation. The employer offered a different shift to accommodate this situation, an offer which was retracted when the employee called in ill without sufficient notice. The complainant declined the new hours as it conflicted with her childcare requirements. Her termination followed.
The company’s allegations of performance-related reasons for termination failed. The Tribunal found that the decision was influenced by her family obligations.
An award of damages for lost dignity, injured feelings and self-respect for the human rights violation was made of $30,000. There was no request made nor award made for lost income. The claim could have been much more dramatic. The lost income award could have continued to the date of hearing and reinstatement also could have followed.
Employers must be cognizant of such child care and indeed elder care and other family status obligations. Legal advice must be taken to guide management through these difficult issues.
Family care issues are troubling on many levels, including personal and employment issues. Employees should obtain legal advice to understand and adjust to these concerns.
Get Advice Before You Act
If you have questions about this issue or any employment question, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.
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