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The Ontario Human Rights Tribunal recently decided a case in which the employee alleged that the employer had failed to accommodate her special needs related to childcare and her termination was discrimination based on her family status.

What Happened?

The employee worked as a personal support worker for the employer from at least 2013 until the date of her termination, May 23, 2017. The employee was married with two children. At the time of the termination, the children were two and five years old. The eldest has autism. It was essential that a caregiver meet the eldest at the employee’s home where the school bus delivered him each weekday. Because her other family members were unavailable, the employee wasthe only one in a position to meet the eldest child’s bus at her home, because her shift at work ended at 3:00 p.m. 

At all relevant times, the employer was aware of the employee’s children and her child’s special needs.

In March 2017, the administration began discussing moving the employee from her usual 7:00 a.m. – 3:00 p.m. day shift to the later afternoon shift: 3:00 p.m. – 11:00 p.m. The employee informed them that she was unable to work the later shift because of her children’s schedule and problems she was having finding more flexible daycare. The employer initially offered her a midnight shift to accommodate her childcare needs.

However, in May 2017, the employer told the employee that it could not longer offer her the midnight shift because she had called in sick the month before without giving adequate notice. The employee then informed the employer she could not work the later afternoon shift because of her childcare needs.

Two days later, the employer informed the employee she had been terminated. The termination letter stated that the reasons for the termination were because of: attendance, failure to follow instructions, conduct, creating disturbance, performance and work quality.

The Issues

The employee alleged that the employer failed to accommodate her special needs related to childcare, and terminated her employment, at least in part, because she was unable to work more flexible hours given her duties as a mother. When it was filed, the application alleged discrimination with respect to employment because of family status and also reprisal contrary to the Human Rights Code (the “Code”).

The Law

The tribunal stated that the following Code provisions were relevant to the 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.

Additionally,in s. 10(1) of the Code, “family status” is defined as “the status of being in a parent and child relationship”.

The Human Rights Tribunal Decision

The tribunal began by setting out the 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.

Applying the law and legal test to the facts of the case, the tribunal concluded:

“I find that the [employer]’s stated reasons for the termination were not based in fact. The [employee]’s performance was fine. The [employer]’s reasons were pretextual, and by inference, I find that at least one of the real reasons for the termination, if not the only reason, was the [employee]’s unavailability for certain shifts caused by her need to provide care to her children. Her request regarding her shifts was the only issue that arose during the time immediately prior to the termination, and the issue was unresolved between the [employer] and the [employee] at the time of the termination. 

I also find that the [employer] could easily have given the [employee] the midnight shift to accommodate her childcare schedule. The [employer]’s decision not to give the [employee] the midnight shift was based upon an unreasonable expectation that she should have provided 48 hours of notice that she would be ill, or that she should have found a replacement for herself even though she became ill the night before a morning shift. The withdrawal of its offer to provide the [employee] with the midnight shift was arbitrary, unreasonable and unfair. In conclusion, the [employer] made no allowance for the [employee]’s childcare responsibilities in their determination that her scheduling requirements justified termination.”

As a result, the tribunal awarded the employee $30,000 in compensation for injury to dignity, feelings and self-respect.

Get Advice

If you have questions about unfair practices in the workplace, wrongful dismissal, or any other employment matter, contact the Mississauga employment lawyersat Campbell Bader LLP. We regularly advise both employers and employees on a wide range of issues that arise at work. Contact us online or by phone at 905-828-2247 to schedule a consultation.