Does An Employer Need to Provide Flexibility to An Employee For Child Care Reasons?

The Human Rights Code Provides Protection Against Workplace Barriers That May Otherwise Arise Due to Family Status Issues Such As An Employee Needing to Care For a Child or Elderly Parent.

Understanding the Duty to Accommodate An Employee Due to Family Status Including Special Needs Due to Child Care Concerns

Stressed Woman The case of Simpson v. Pranajen Group Ltd.  o/a Nimigon Retirement Home, 2019 HRTO 10 provides an interesting overview of the extent to which an employer must accommodate an employee that requires such accommodation so to enable the employee, as a parent, to attend to the special needs of family members.

Factual Summary

Jessica Simpson was a Personal Support Worker employed with Nimigon for at least four years.  Ms.  Simpson was married with two young children, the eldest, being five years-old, is autistic and requires the attendance of a caregiver to meet the school bus at the end of each school day.  The husband of Ms.  Simpson, due to employment hours, was unable to meet the school bus.  Additionally, other family members, being the in-laws of Ms.  Simpson, were also unavailable to assist at the required time.  Nimigon was aware of the special needs circumstances of Ms.  Simpson.

In or about March 2017, Nimigon, via management personnel, proposed to amend the work hours of Ms. Simpson.  Ms. Simpson provided notice of incapacity to accept the proposed amended hours due to the conflict such amended hours would cause in attending to the autistic child, and other child.  Initially, Nimigon appeared prepared to accommodate the work hour needs of Ms. Simpson whereas a midnight shift was offered to Ms. Simpson.

In April 2017, Ms. Simpson took a day off work for illness.  It is notable that such was a very rare occurrence for Ms. Simpson.  Upon receiving notice of the absence, Nimigon management issued a warning to Ms. Simpson.  Within the warning, Nimigon alleged a neglect of responsibility by Ms. Simpson.  The alleged neglect stated a failure to source a substitute colleague.  Nimigon also issued a requirement for the submission of a doctor's note confirming the illness of Ms. Simpson.

During the employment history of Ms. Simpson, when previous absence for illness situations arose, Ms. Simpson provided advance notice, usually a few hours, and the sourcing of a substitute colleague was performed by other persons employed by Nimigon.  Accordingly, the warning issued to Ms. Simpson, as well as implication that Simpson was responsible for sourcing a substitute colleague, were changes to the prior and usual procedures.  Furthermore, a few days later, Nimigon issued an advisement that the personal support workers must provide forty-eight (48) hours notice of absence or accept the duty to source a substitute colleague to cover off any absenteeism.

In May 2017, Nimigon provided notice of incapacity to provide the midnight shift as was previously discussed with Ms. Simpson.  Ms.  Simpson advised of incapacity to perform the afternoon shift.  Subsequently, Nimigon terminated the employment of Ms. Simpson.  Nimigon based the termination on various allegations of misconduct including causing a disturbance and failings of performance as by Ms. Simpson.

Further Factual Findings

The Human Rights Tribunal of Ontario found a satisfactory historical performance in favour of Ms. Simpson.  The Nimigon hours of work and illness reporting expectations, among other things, were deemed unreasonable by the Human Rights Tribunal of Ontario.

The Law

The HRTO deemed that the Human Rights Code, R.S.O. 1990, c. H.19 applied to the circumstances.  The HRTO referred to specific sections by stating:

[24]  The following Code provisions are relevant to this case:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of ... family status.

11(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 member is a member, except where,

(a)  the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b)  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 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.

[25]  In section 10(1) of the Code, “family status” is defined as “the status of being in a parent and child relationship”.

Furthermore, the Human Rights Tribunal of Ontario applied significant jurisprudence as precedent cases applicable to the determination that discrimination arose.  The jurisprudence supported the allegation that a parent should be accommodated on the basis of family status where a parent is legally required to attend to the responsibilties of parenthood.

[26]  The Federal Court of Appeal issued a decision that clarified that the sorts of parental obligations that fall within the protected ground of “family status” under human rights legislation are substantive obligations that engage a parent’s legal responsibility to a child.  See, Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII) (“Johnstone”).

[27]  In Johnstone, above, the Federal Court of Appeal at para. 93 set out a specific test for establishing family status discrimination in the context of childcare, stating that a claimant must prove:

a.  The child is under his or her care and supervision;

b.  The childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to personal choice;

c.  The individual has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and

d.  The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

[28]  Johnstone, above, at para. 70, also held that the childcare obligations protected under the ground of family status are those which a parent cannot neglect without engaging his or her legal liability.

[29]  In Power Stream Inc. and I.B.E.W., Local 636 (Bender) (Re), (2009) 186 L.A.C.  (4th) 180 (“Power Stream”), an arbitrator used the term “self-accommodation” to describe the principle formulated in Johnstone, above, that an employee had to prove he or she made reasonable efforts to meet childcare obligations through reasonable alternative solutions and that no alternative solution was reasonably accessible.

[30]  In Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (CanLII) (“Misetich”), the Tribunal did not agree with the principle in Johnstone that in order to prove discrimination, an applicant must establish that he or she could not self-accommodate the adverse impact caused by a workplace rule.  The Tribunal also endorsed the submissions of the intervener, the Ontario Human Rights Commission, which argued against using a special test for family status cases when determining whether there was a breach of the duty to accommodate.  The Tribunal reasoned that there may be obligations that caregivers do not necessarily have as a result of their legal responsibilities, but those obligations may still be essential to the parent/child relationship.  The Tribunal concluded that there should be the same test to establish discrimination in cases regarding family status discrimination as in cases of discrimination regarding the other Code grounds: the applicant must establish that he or she is a member of a protected group, has experienced adverse treatment, and the ground of discrimination was a factor in the adverse treatment.

Remedy Request and Remedy Decision

Ms. Simpson requested a remedy that contained, among other things, compensation in the amount of $30,000 for discrimination as well as $15,000 for injury to dignity.  Such requests as well as the review and findings based on the testimony of Ms. Simpson, were stated and summarized by the Human Rights Tribunal of Ontario whereas it was said:

[39]  The applicant requested $15,000 for the loss of the right to be free from discrimination, plus another $15,000 for injury to dignity and self-respect.  At the hearing, she clarified that she is seeking the total amount of $30,000 in monetary compensation for injury to dignity, feelings and self-respect.

[35]  The applicant testified that she was very stressed and upset after her termination. She was “really down” for a long time. She was so worried that she talked to her family doctor about it. She was advised to take anti-anxiety medication, but decided against it because she feared the side-effects might affect her ability to parent.

[36]  The applicant testified that losing employment income meant that she could not pay her bills on time so that she felt like a failure in providing for her family. She had no money to pay for speech therapy for her eldest son with autism, and she felt as a failure to him as a result. In order to pay for hydro, water and property taxes, she had to take a second mortgage on her house with a very high interest rate. The financial stress was very high for her and her spouse so that they fought a lot. Her children witnessed the fighting, and she was very upset that they saw that.

[37]  The applicant testified that she felt that the respondent did not recognize the value of her work as a PSW when it terminated her employment, and she lost confidence in herself. Even after she found a new job, she was anxious for eight to nine months that her new employer might also not value her work, and she worried that something similar might happen. Fortunately, she has been valued at her new place of employment and still works there, but she remembers how long it took her to lose her fear of being terminated again.

[38]  I find that the applicant’s testimony about her feelings and the impact of the discrimination was both credible and reliable and there is no reason for me to question it. It is clear that the respondent’s disregard for her childcare needs and the termination of the applicant’s employment caused her great stress and emotional harm. The applicant was particularly vulnerable given that one of her sons has autism. There is clearly extra stress a parent has in providing childcare when a child is autistic, and the parent’s vulnerability when the parent feels inadequate in providing for his or her child. It is no surprise that the applicant testified that she felt she failed her children, particularly her son with autism.

Upon review of various prior decisions including, Arunchalam v. Best Buy, 2010 HRTO 1880Chittle v. 1056263 Ontario Inc., 2013 HRTO 1261, and Conklin v. Ron Joyce Jr.  Enterprises Ltd. o/a Tim Horton’s, 2017 HRTO 723, the Human Rights Tribunal of Ontario agreed and awarded the $30,000 in compensation to Ms. Simpson.  When analyzing these prior decisions and awarding the compensation the Human Rights Tribunal of Ontario stated:

[43]  I find that it is appropriate to award $30,000 in compensation for injury to dignity, feelings and self-respect in this case.

[40]  With respect to compensation for injury to dignity, feelings and self-respect, in Arunchalam v. Best Buy, 2010 HRTO 1880 at paras. 52 to 54, the Tribunal summarized some of the considerations relevant to an assessment of damages to be awarded under s. 45.2 of the Code:

I turn now to the relevant factors in determining the damages in a particular case.  The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.

The first criterion recognizes that injury to dignity, feelings, and self- respect is generally more serious depending, objectively, upon what occurred.  For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion.  Losing long-term employment because of discrimination is typically more harmful than losing a new job.  The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination.  Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious.  Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34 - 38.

[41]  The applicant could not point to a decision involving a termination because of a parent’s childcare obligations where the Tribunal found discrimination because of family status and awarded as much as $30,000 for injury to dignity, feelings and self-respect, but the applicant argued that there are very few decisions on the issue. I note that the Tribunal has many times awarded compensation of $30,000 or more in cases where respondents terminated employment because of discrimination for grounds other than family status. For example, in Chittle v. 1056263 Ontario Inc., 2013 HRTO 1261, the Tribunal awarded $30,000 for injury to Mr. Chittle’s dignity where Mr. Chittle was unable to attend work because of disability. I see little difference between an employee being unable to attend work for reasons related to disability and the applicant’s situation where she would be unable to attend work for reasons related to family status.

[42]  As the Tribunal stated in Conklin v. Ron Joyce Jr. Enterprises Ltd. o/a Tim Horton’s, 2017 HRTO 723, where the Tribunal has found that an applicant lost employment for discriminatory reasons, compensation for injury to dignity, feelings, and self-respect has ranged considerably. In most cases, the range has been between $10,000 and $35,000. In the applicant’s case, she lost long-term employment and I am satisfied that her particular experience in response to the discrimination was very serious. She was particularly vulnerable given her responsibilities and feelings towards her children. I am therefore prepared to order compensation for injury to her dignity, feelings and self-respect that is at the high end of the range of compensation.

Summary Comment

Employees requiring flexibility in hours, among other things, so to enable the employee to accommodate special needs family members, such as a child or others, should receive the required accommodations from an employer.  Where an employer fails to provide the flexibility, such may be a violation of the Human Rights Code which may lead to significant liabilities against the employer.

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