A recent Human Rights Tribunal of Ontario decision confirms that family status protection may require employers to accommodate employees’ sporadic or unexpected absences to fulfill childcare obligations.
In Miraka v A.C.D. Wholesale Meats Ltd., Mr. Miraka was terminated from his employment after being absent from work for three consecutive days. He missed two days to take care of his children when his wife, who was the primary caregiver, fell ill. When he returned to work the following day, he suffered a workplace injury at the beginning of his shift and asked to leave early. The employer responded by terminating his employment.
With respect to family status claim, the Tribunal determined that the employee had been discriminated against contrary to the Human Rights Code. The starting point for the Tribunal’s analysis was the Federal Court of Appeal decision in Johnstone v Canada (Border Services) (“Johnstone”).
Johnstone set out the following test for family status discrimination:
- the child is under the claimant’s care and supervision;
- the childcare obligation at issue engages the claimant’s legal responsibility for that child, as opposed to a personal choice;
- the claimant has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
- the impugned workplace condition or rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
The Tribunal accepted the applicant’s uncontradicted evidence that his wife suffered from an anxiety disorder that rendered her unable to care for their children on the days the applicant was absent from work. The Tribunal reasoned that to leave the children home alone with their mother, who could not provide adequate care, would be inconsistent with the applicant’s substantive obligations as a parent as outlined in Johnstone.
On the issue of whether the applicant made reasonable efforts to find alternative childcare, the Tribunal distinguished between cases of long-term accommodation needs, like that found in Johnstone, and short-term accommodation needs. The Tribunal held where there is an infrequent, sporadic or unexpected need to miss work in order to fulfill children obligations, the requirement to demonstrate reasonable efforts to find alternative childcare does not apply.
The Tribunal found that it would be unrealistic for the employee to be expected to have a babysitter “on call” for when his wife fell ill. It also rejected the employer’s argument that the employee ought to seek out alternative childcare on Craigslist or Kijiji, which the Tribunal stated could in itself be inconsistent with a parent’s legal obligation to ensure the safety of their children. Despite its conclusions regarding the legal test, the Tribunal did state that if close family members or friends were available, a person may be expected to attempt to make arrangements. However, in this case it accepted the applicant’s evidence that no family members or friends were available.
The Tribunal also found that the applicant had been discriminated against on the basis of disability because he was terminated after suffering an injury. It awarded him $10,000 for injury to his dignity, feelings and self-respect. He did not receive an award for lost income as the Tribunal determined he would not have been able to work during the relevant time period on account of his disability.
The case law in relation to family status claims continues to develop. Although the Tribunal determined that an employee does not need to demonstrate self-help prior to seeking accommodation on family status grounds for unexpected absences, employers can and should make inquiries into the reasons for the need in order to establish that the Code protection has been triggered. This includes, for instance, any relevant information and documentation substantiating the need. Further, if a short-term need develops into a long-term need, the employer should ensure the employee has demonstrated reasonable efforts to find alternative childcare arrangements.
By contrast, in Flatt v Attorney General of Canada, a recent decision of the Federal Court of Appeal, family status discrimination was not found. The court determined that the employer’s denial of an employee’s request to telecommute in order to continue breastfeeding was not discriminatory. It was held that the employee’s desire to continue breastfeeding was a personal choice, not a legal obligation. However, the Court did state that in other circumstances, for instances where there is medical evidence that the child requires breastfeeding, family status protection may be triggered.
At the 17th annual Ontario Employment Law Conference, presented by Stringer LLP and First Reference Inc., employment lawyer Landon Young will provide employers with guidance on new developments in the law on family status accommodation and how far employers must go to fulfill their duty to accommodate family status needs.
The Ontario Employment Law Conference will take place at the Corporate Event Centre at CHSI in Mississauga on June 2, 2016. We look forward to seeing you and helping you apply the latest employment and labour law changes. Come and learn the latest!
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