Michael Ford (post until Oct. 31/19)
Employment & Labour

Finding suitable workplace accommodation is a two-way street

By Laura Williams

Employers in Ontario are increasingly receiving accommodation requests based on employees’ childcare obligations. Many employees have children and other relatives who require care or who have special needs that need to be attended to.

While many employers mistakenly believe childcare and eldercare issues are strictly personal issues for employees, employers, in fact, have a legal obligation to accommodate an employee’s ‘family status’ requirements up to the point of undue hardship, similar to the obligation to accommodate employee disabilities and religious observances.

Employees’ childcare and eldercare responsibilities must be accommodated by employers in certain circumstances, but these employee responsibilities must be balanced against employers’ legitimate needs to organize their business affairs. Employees have corresponding duties to cooperate in the search for reasonable accommodation and must work with their employers to find an arrangement that works for both parties. This was a key issue in this case, a recent case from the Ontario Superior Court of Justice which highlights the outcomes for an employee who fails to cooperate in the accommodation process.

In the case, the court was asked to decide whether an employee returning to work after a pregnancy leave was constructively dismissed when her employer refused to allow her the scheduling flexibility she’d enjoyed prior to the leave. The court was also asked whether the terms of employment offered after returning from her leave had been contrary to the Ontario Human Rights Code (the Code). The court found that the employee had not been constructively dismissed because the flexibility she’d been accorded in scheduling prior to the leave was not actually a term of her employment. The claim made under the Code was dismissed largely due to the employee’s failure to cooperate in providing her employer with the details it required to satisfactorily accommodate her family status.

The court applied the tests for family status discrimination derived from this case and this case. Each case sets out a different set of factors for determining whether family status discrimination has occurred. Although the Human Rights Tribunal of Ontario has preferred the second case’s test to the first, the Superior Court of Justice applied both tests for family status discrimination (which we blogged about here) in determining whether the employer had violated the Code.

Constructive dismissal

With respect to the constructive dismissal claim, prior to her pregnancy, the employee had been scheduled for work every morning at 8:30 a.m. but in practice showed up between 8:30 and 10:00 a.m. in the morning so she could take her children to the bus. The employer allowed the employee to arrive late, but never agreed to modify her hours of work accordingly. When the employee returned from her pregnancy the employer’s business needs had changed, and they required her to arrive by 8:30 every morning. Since her late arrivals had never actually been a contractual term, the court found that the employer had not unilaterally changed a fundamental term of employment when it insisted she arrive to work by 8:30 am, and therefore denied the constructive dismissal claim.

Family status

The family status issue arose out of the same set of facts. The employee alleged that the employer’s failure to provide her with the same flexibility in her hours of work as it had prior to her pregnancy constituted discrimination on the ground of family status. In this regard, the employee argued that her childcare obligations required her to have modified, flexible hours, but she provided no evidence to substantiate her claim. Interestingly, the court chose to apply both tests in assessing the discrimination claim and found that the employee was unable to meet either test to prove she’d been discriminated against. She did not prove that taking her children to the bus in the morning was a reasonable requirement of the parent-child relationship as required to satisfy the first case's test. The employee similarly did not prove that an inability to take her children to the bus in the mornings constituted a real disadvantage to the parent-child relationship as required to satisfy the second case's test.

In considering both tests, the court emphasized the employee’s failure to cooperate in the search for reasonable accommodation. The court found that she had failed to provide her employer with details of any before or afterschool care arrangements she had made for the children. The employee further failed to give her employer information about what efforts she was undertaking to secure care for her children. She also refused to accept a similar position which would have allowed her to begin at 10:00 a.m. without providing her employer with any explanation as to why. It was the employee’s contention that the employer, “should have known,” that she could not accept a position that required her to work until 7:00 p.m. as it conflicted with her childcare obligations. The court also found that the employee had been dishonest in her disclosure to the employer, making it even more difficult for the employer to accommodate her needs.

As a result of the employee’s failure to adequately cooperate in the accommodation process, the court held that the employer did not discriminate against her.

Takeaway

This decision confirms two important principles employers should be aware of.

First, employees cannot insist that latitude provided to them during the course of their employment constitutes a material change to their terms of employment. This decision makes it clear that an accommodation of modified hours for a period of time does not necessarily constitute a change to the terms and conditions of employment. In such cases, a reversion to the original schedule will not constitute constructive dismissal.

Second, employees are required to cooperate with employers when they are requesting accommodation for a Code-protected obligation or need. Employers have a duty to accommodate employee’s needs up to the point of undue hardship, but employees must also provide the information necessary for the employer to determine what reasonable accommodation looks like. Where employees fail to cooperate, the employer may be found not to have violated its duty to accommodate notwithstanding the fact that no accommodations were put in place.

Lastly, it is interesting to note that the Court applied both tests when the second explicitly rejected the approach favoured in the first. In this case, both tests produced the same result, however, the decision does not indicate what the outcome would have been had each test rendered different results. As such, unless and until the test in this case is specifically rejected by Ontario’s appellate courts or the Supreme Court of Canada, employers should consider both tests when assessing family status accommodation requests and must understand that this less-stringent test may be applied in the event of a claim that the employer has failed to accommodate.

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