Family status: The employee’s obligation under “the Code”

March 22, 2017 Kevin Sambrano, Sambrano Legal Services Employee Relations, HR Policies and Procedures, Human Resources, Human Rights

The recent decision of Misetich v. Value Village Stores Inc. reaffirms that family status accommodation under the Human Rights Code (“the Code”) is a joint obligation, involving both the employee and employer.

Background

The applicant, Ms. Misetich, had been employed with the respondents, Value Village Inc., for approximately 7 years when the applicant developed a repetitive strain injury resulting in the respondent accommodating a job change request.

The matter arose when her regular job schedule might have conflicted with the applicant’s established eldercare responsibilities. The applicant requested accommodation based on the ground of family status, namely the care of her mother. The applicant’s request was eventually denied by the respondent and the applicant subsequently terminated. The applicant filed an application at the Human Rights Tribunal of Ontario alleging discrimination based on the ground of family status.

The respondent maintained that they did not discriminate against the applicant who, they alleged, was terminated for job abandonment. The matter proceeded to a hearing before the Tribunal where the application was eventually decided in favour of the respondent.

The matter

On January 10, 2013, a letter was sent to the applicant offering her modified duties which may have resulted in a change in the applicant’s normal work hours. The applicant replied stating that the hours would place a hardship on the applicant because she prepared evening meals for her mother.[i] The Tribunal found that the respondent was willing to consider the applicant’s request, but had first requested medical documentation from the applicant to substantiate the request for altered work hours. Unfortunately, the applicant provided very little information in response to her employer’s request as she believed the respondent was not entitled to private information about her mother.[ii] During the hearing, the applicant elaborated on the requirements and restrictions that had played a role in her accommodation request. According to testimony, the main issue was that of providing evening meals for her mother, meals that upon further examination, the Tribunal believed, could have been provided by alternative means. The Tribunal’s decision stated:

The applicant’s ability to provide evening meals for her mother was not adversely affected by the requirement to work days, evenings and weekends. The applicant could have worked these shifts and provided evening meals for her mother, when required, in the same way that she was able to provide a meal in the middle of the day. As a result, the applicant has failed to establish discrimination.[iii]

The termination

Regarding the termination, the Tribunal ruled that the applicant had not provided the required information asked of her and did not return to work. In fact, the applicant had not attended work for approximately 10 months, and as such, it was found that the applicant had in fact abandoned her position.

The takeaway

The applicant was required to provide sufficient information to substantiate her eldercare responsibilities. Had the employee complied with the medical information request or had discussed the complexity of the situation at length with her employer, she may have stood a far better chance for accommodation, failing which, her odds of success at the Tribunal would have been much improved.

[i] Misetich v. Value Village Stores Inc. 2016 HRTO 1229 (CanLii)

[ii] Ibid., para. 7

[iii] Ibid., para. 64

Further readings:

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Kevin Sambrano, Sambrano Legal Services

Paralegal at Sambrano Legal Services

Kevin Sambrano, B.A.A. is a paralegal who is passionate about law. Kevin has the distinction of being the first paralegal candidate to participate in the Community Legal Aid Services Programme at Osgoode Hall Law School. Sambrano Legal offers legal representation in human rights, landlord and tenant, employment, and Small Claims Court matters within the GTA. Kevin has been a regular contributor to First Reference Talks since 2014 with over 44 published articles relating to human rights and employment law.Read more