We have told dentists several times that employees must co-operate in the accommodation process (like when requesting changes for childcare). If there is reasonable information that the employer requests, the employee must give it. If there is a reasonable accommodation that the employer can make, they employer must make it.
We were not surprised to hear about the case of Peternel v. Custom Granite & Marble Ltd., 2018 ONSC 3508 that was recently decided in the Ontario Superior Court of Justice.
Here’s the short story of the case: if an employee does not cooperate in the accommodation process, they will not be able to prove discrimination.
The employee worked for her employer for about three years. When she first took the job, she knew that mornings were an important part of the job; and she had told her employer that she could start working at 8:30am. The employee even attended early morning meetings; and also took work-related calls (on a cell phone provided by the employer) at 6:00am some days. The employee further told her employer that her mother lived with her and could provide child care when needed.
The employee later stated (at the trial) that her day would normally start at 10:00am because she needed to personally get her kids on the morning school bus. The employer disputed this since it had proof that the employee regularly came into work at about 8:30am.
The employee took a parental leave after about three years of work. Her expected return-to-work date was December 2014 but was updated to January 2015 with consent of her employer.
Before she returned to work, the employer made it clear to the employee that she would need to start work at 8:30am and not at a later time. In fact, the employer had a meeting with the employee and gave her a written employment agreement which confirmed that.
At this meeting, the employee disclosed to her employer that she had had a falling out with her mother (who had moved out) and that she needed to arrange for outside daycare. She also told her employer that, while she had full-day daycare for her infant, she had only arranged for after school daycare for her older two children, based on her assumption that she would resume her previous work hours of 10:00am to 5:00pm. The employee stated that she would see what she could do to find before school daycare for her two older children. At the trial, the employee said that she placed her kids on a 6-month waiting list for before-school day care.
By the time the return-to-work date occurred, the employee said her infant had a place in a daycare centre that was located en route to the employer’s business, and that this had been hard to find because few daycares accept infants younger than 18 months.
However, the employee never returned to work. The employee said she was unable to do so because she could not secure before school daycare for her two older children and because her employer would not accommodate her childcare needs. The employee alleged constructive dismissal (a significant, unilateral change to employment terms without reasonable notice) as well as discrimination (since the employee did not get the exact accommodation she wanted).
First, the judge confirmed what the Employment Standards Act (at section 53(1)) says, which is:
Upon the conclusion of an employee’s [leave of absence], the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.
The employee tried to argue that she was entitled to go back to her 10:00am start time; and that any change to that would be a constructive dismissal. The judge confirmed that the employer did not constructively dismiss its employee by forcing her to come in at 8:30am, because the employer had good evidence to prove that it had experienced changing business circumstances and therefore could no longer offer the employee the flexibility of coming into work whenever she wanted. The employer was not changing the terms of the employee’s contract; it was simply asking the employee to do what she had done throughout her time in her job: “to be at work when [the employer] needed her to be there” at para.42.
So, there was no constructive dismissal or wrongful dismissal.
Accommodation and Discrimination
Moving to the employee’s human rights component, the judge reviewed the current law as it relates to an employee establishing family or childcare based discrimination and said there are two existing tests in order for an employee to prove discrimination.
In the first test of discrimination, an employee would have to prove that:
- the child is under her care and supervision;
- the childcare obligation at issue engages her legal responsibility for that child, as opposed to a personal choice;
- she 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 rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
In the second test, an employee would have to show not only a negative impact on a family need but also that the negative impact “must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/ or to the employee’s work. For example, a workplace rule may be discriminatory if it puts the employee in the position of having to choose between working and care-giving, or if it negatively impacts the parent/child relationship and the responsibilities that flow from that relationship in a significant way.” The judge also confirmed that assessing the impact of a workplace rule must be done “contextually and may include consideration of other supports available to the applicant”.
In either test, the judge confirmed that the duty to accommodate is a “joint process” requiring cooperation between employee and employer.
In this case, the employee provided her employer with very little information about her childcare arrangements and needs. This is the list of information that the judge said the employer DID NOT have from the employee, in trying to work out an accommodation:
- that she had not paid for daycare and that without a firm January start date, she would lose all her daycare;
- to find daycare for her then 13-month old infant;
- that she had secured temporary before school care through a neighbour, which would bridge the gap until a before school daycare spot opened up at her children’s school;
- that unless she were permitted to start her workday at 10:00 a.m., even on a short-term basis, the plaintiff would forfeit her daycare spots and would be unable to return to employer on any terms;
- any detail about her efforts to obtain before-school care.
The employer even offered an alternative position for the employee, which would have allowed her to start work at 10:00am – but the employee did not respond to the offer (because she felt it was obvious she could not take the job). The judge noted that the position “would have been within the plaintiff’s skills and experience and at a salary similar to that of” her former position.
Credibility of the Employee
The judge also came down pretty hard on the employee in two different emails that she had sent her employer which showed she had reduced credibility.
The first was in an email from the employee to employer on January 12, 2015, where the employee said “I believe there is something that requires you as my employer to be more reasonable in providing more options to accommodate my family status. I welcome to look at an option B to set a start date and move forward.” Here, the judge said that the employee was more aware of her rights and responsibilities; but more importantly, the employee was not being truthful in her related testimony given in court.
The judge specifically wrote: “Had the plaintiff provided [her employer] with information about her daycare situation, and [her employer] then refused to co-operate in accommodating the plaintiff, she might have been able to establish that the work hours required by [the employer] constituted adverse treatment on the basis of her family status. However, as the [Human Rights] Tribunal [held in a previous case], all of that is ‘theoretical’ because the plaintiff did not provide that information to [her employer].”
The second was where the employee was found to be not truthful in other testimony given to the judge. In an email dated February 6, 2015, the employee told her employer that she could “return to work immediately if you can accommodate the hours of 9:30-430 or my original shift of 10-5, as I have the aftercare in place.” But the judge connected the dots (so to speak) and found that by that date, the employee had no daycare whatsoever in place and would not have been able to then return to work on any terms.
Further, when the employee was questions on cross-examination, she admitted that she was “very confused” and actually admitted that the above plan was “‘grasping at straws’ to see if her employer would put up another roadblock.” She then finally admitted that she wrote the email to try and “set-up” her employer as her employer apparently did to her, because the employee knew her employer wouldn’t take the updated offer.
The judge concluded that the plaintiff was not truthful at trial and had failed to provide her employer with her daycare issues and updated childcare needs. If she had done so, and her employer refused, the outcome may have been different. But by failing to disclose her true needs, the employee frustrated any efforts that might have been made by her employer to accommodate her needs. Therefore, the employee failed to show that she was wrongfully dismissed or that her employer’s request that she start her work day at 8:30am was discriminatory.
As a result of her loss, the Plaintiff was forced to pay her former employer over $54,000.00 for their legal for the eight-day trial.
All employees in Ontario are entitled to reasonable accommodation in the workplace for a variety of reasons (disability, caring for a family member, pregnancy, child care), to the point of undue hardship. This decision does not change that.
What the decision does confirm is that childcare accommodation is not like medical accommodation or pregnancy accommodation. There is a special analysis that must be done for each person requesting childcare accommodation. If you request the relevant information from the employee and make reasonable offers of accommodation – but your employee rejects your assistance and offers – your management actions may not automatically be considered discrimination.
This decision definitely puts a “point” on the employer’s side, and it is a decision that all dentists should be aware of.
Call us if you want to talk about your employees’ accommodation requests – we would be happy to help!