Parents often have to juggle childcare obligations including daycare, and after-school care for school-aged children. Many employers will provide accommodation for a parent’s need to manage these schedules whenever possible. However, some employers do not. Those who do not (in situations where accommodation would be reasonably possible) might find themselves liable to their employees, as occurred in a recent decision of the Human Rights Tribunal of Ontario.
Employer Approves Accommodation, Then Walks it Back
The applicant employee is a father of three children, who at the time of the complaint, were all under seven years old. The father lived with his spouse, as well as her elderly parents. The evidence showed that the elderly parents were not capable of taking care of the youngest child due to mobility issues. Accordingly, one or both parents had to be home to provide care. Although the mother stayed home for several years, she planned to return to work when the youngest child turned one. The problem was that the parent’s work schedules overlapped later in the day. While the father worked from 8:00 a.m. to 4:00 p.m., the mother’s workday started at 3:00 p.m. and ended at 11:00 p.m.
The father worked at a commercial laundry facility. He was the operator of a large commercial washing machine. This was a skilled technical position, and the father was one of the few workers in the facility trained to operate the machine. In anticipation of the mother returning to work, the father approached his supervisor with a request to change his shift hours. He wanted to be able to leave his workplace at 2:30 p.m. so that he could be home before his wife was required to leave for her shift.
The father’s request was taken to his manager, who approved his request. A letter was later prepared by the supervisor, signed by the manager, and given to the human resources staff member. The father was not provided with a copy of the letter.
A year later, a new general manager began working for the employer. The manager claimed the employer was experiencing financial difficulty and that it would need to enforce compliance with the schedule, including common start and finish times. The employer posted two notices advising this. After the second notice, the father’s supervisor advised him that he would be expected to stay until 4:00 p.m. going forward.
The father advised the manager that he had no choice but to leave at 2:30 p.m. The father continued to leave at 2:30. The manager first gave him a warning letter. Following this letter, the father advised his manager that his wife would attempt to change her schedule, but that this would take months. The employer suspended the father without pay. Later, the employer terminated the father.
The father brought an application before the Human Rights Tribunal of Ontario (the “Tribunal”) alleging discrimination on the basis of family status.
HRTO: Employer Failed to Sufficiently Engage the Accommodation Process
The Tribunal accepted that the father had made the specific request to have his shift changed. The tribunal also found that s. 11 of the Ontario Human Rights Code applied, which states:
(1) A right of a person [under Part I] is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
1. the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
2. it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
The employer’s requirement that everyone on the shift worked from 8:00 a.m. to 4:00 p.m. had an adverse impact on anyone who had relied on the schedule flexibility that was previously provided by the employer.
In this case, the father had made a request to his employer months before it was needed. This change was requested to accommodate his family status obligation. The employer agreed. The accommodation was put in place. A year later, the employer required that employees conform to uniform start and end times. This change had an adverse impact on the father.
The Tribunal found that when the father learned that he was required to stay until 4:00 p.m., he took the appropriate steps to engage in the accommodation process. He advised the general manager of his family status obligation. The father also inquired into possible alternatives, including having his wife change her shift at work.
The Tribunal found that the employer should have engaged in the process as well. However, the Tribunal concluded that the employer had not done so, and thereby failed in the procedural and substantive duty to accommodate the applicant’s family status needs.
The Tribunal found that the proper remedy, in this case, was the sum of $29,724.39 in compensation for lost wages. The employer was also ordered to pay the father $20,000 in compensation for injury to dignity, feelings and self-respect.
Employers have a duty to comply with accommodation requirements whenever it is reasonable to do so. If they fail in this regard, they may face a steep monetary penalty, as demonstrated above.
For advice on wrongful dismissal disputes, human rights in the workplace, and other employment or labour law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. 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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