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48-hour Sick Day Notice=$30,000

By January 23, 2019November 5th, 2019Employment Law

Sick time is one of the most common issues that come across my desk.  In 2018, employees were automatically entitled to paid sick time, but now in 2019 it has been taken away.

Unsurprisingly to us, the Human Rights Tribunal of Ontario recently confirmed it was unreasonable for an employer to fire an employee for six various reasons, including not giving 48 hours notice before she needed to call in sick, and for having childcare obligations.

The Case

A new case was just released online called Simpson v. Pranajen Group Ltd. o/a Nimigon Retirement Home. For reasons that will remain with the employer, they chose not to participate in the substantive part of the hearing; but the hearing went ahead anyway.

The employee (named Jessica Simpson) worked as a personal support worker from 2013 to 2017.  She also had two young children at the time of termination.  The employee said she had only missed work three to four times during her tenure when either she or her children were sick (including one child who has autism).

The Accommodation and New Shift

The Employee had requested accommodation from her employer when the Employer said it would change her shift from 7am-3pm to 3pm-11pm.  The Employee explained the change would understandably cause a disruption in her childcare obligations (daycare and having the children’s grandparents care for them were already being done) and could not work the later shift.  The Employer said they would get back to the Employee; but they never did.

Later that year, the Employee requested to apply for the midnight shift at work.  At the same time, the Employee discussed her childcare obligations verbally with a manager. The manager told the Employee that she could work the midnight shift.

The Day of Absence

Three weeks after that interaction, the Employee was ill and could not work.  She phoned into work (and texted her manager) and said she could not work the next day.  The Employee was warned that since she did not give 48 hours notice of her illness, it was her responsibility to find a replacement as under the Employer’s policy (but the Employee said there was no such policy).  The Employer also asked for a doctor’s note.

The day after the Employee’s illness, the Employer sent out an “Urgent note” to all employees saying: “If you have to take day off you need to give at least 48 hours notice to me so that I can find the replacement. Otherwise you need to find your replacement by yourself.”

The Termination

On May 19, 2017, the Employee went to managers and asked to discuss the schedule.  Instead, the managers told her that she would not be receiving the midnight shift because she had called in sick without giving the 48 hour notice. 

Later that month, when trying to confirm availability for her other shifts, the Employee told the Employer she could not work the late afternoon shift on Fridays and Saturdays due to her child care obligations. Two days after, the Employer called the Employee and told her that her employment had been terminated. The termination letter that followed stated that the reasons for the termination were because of these six reasons:

“Attendance, Failure to follow instructions, Conduct, Creating disturbance [sic], Performance, [and] Work quality.”

There were no explanations for any of the reasons for termination.

The Human Rights Decision

The Employee was successful in proving to the Tribunal that she was terminated because of her child care needs. The Tribunal didn’t buy any of the Employer’s reasons for terminating and instead said the following:

“I find that at least one of the real reasons for the termination, if not the only reason, was the applicant’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 respondent and the applicant at the time of the termination.”

With regards to the discrimination on childcare, the Tribunal said this:

“I also find that the respondent could easily have given the applicant the midnight shift to accommodate her childcare schedule. The respondent’s decision not to give the applicant 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 applicant with the midnight shift was arbitrary, unreasonable and unfair. In conclusion, the respondent made no allowance for the applicant’s childcare responsibilities in their determination that her scheduling requirements justified termination.”

The Tribunal awarded the Employee all of the $30,000 she had requested for human rights damages and injury to dignity and self-respect.

Takeaway for Dentists

This case is important for several reasons:

  1. It appears the Human Rights Tribunal is sending a message to employers that family status discrimination will be taken seriously, and improper employers will pay more for discriminating against employees for that;
  2. Family status accommodation requests should be treated the same as other accommodation requests, instead of the Employer first delving into the specific details of what childcare solutions the employee has already undertaken;
  3. Employers should promptly respond to their employees’ requests;
  4. Employers should take part in Human Rights Tribunal proceedings;
  5. Clear policies are always needed in a workplace; and
  6. A clear policy should not be arbitrary, unreasonable, or unfair.
DMC