Random requests for childcare can be accommodated

Tribunal supports absent father
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 09/23/2016

As a newer area of employment law, family status and accommodation continues to evolve, as seen in a Human Rights Tribunal of Ontario (HRTO) case that found even random requests regarding childcare should be properly considered by employers.

The case involved Jolanda Miraka, a delivery truck driver for A.C.D. Wholesale Meats in Toronto who started work on May 14, 2012. On Monday, June 11, his wife — who suffered from anxiety attacks — called him at work to tell him she was unwell so Miraka told the office manager, Rosa Ruffolo, he would not be able to work Tuesday as he’d have to stay home to look after his young children.

On the Wednesday, Miraka phoned work late to say he had to stay home again to look after the kids. And when Miraka returned to work Thursday, he started loading skids in the cooler room but said he felt a sharp pain in his side after picking up a box. He left work and was diagnosed with a hernia but Miraka’s employment was terminated nonetheless — leading to the discrimination complaint.

The evidence in the case established that Miraka was unable to work for two days because of family status and one day because of a disability, said adjudicator Sheri Price. And the absences were at least a significant part of the reason A.C.D. decided to terminate his employment. Accordingly, there was discrimination, she said.

“The applicant had to miss work on June 12 and 13 because of substantive obligations that engaged his legal responsibilities as a parent to ensure that his young children were safe and secure. Accordingly, I find that the applicant had a (Human Rights) Code-protected need to be absent from work and take care of his children.”

In the end, A.C.D. was ordered to pay Miraka $10,000 to compensate for injury to his dignity, feelings and self-respect. Management was also ordered to complete online training on human rights.

The ruling is the latest from the HRTO affirming that employers have a duty to accommodate employees who want to take time off to tend to their children’s needs, said Sean Bawden, a partner at Kelly Santini in Ottawa.

“Employers need to be aware of that, not only because of children but I think, realistically, we’re going to see an expansion of people with respect to people who have to look after their parents.”

And elder care is even more problematic because there are different issues when it comes to leaving alone a child versus a parent, said Allison Taylor, a lawyer at the law firm Stringer in Toronto.

In Miraka v. A.C.D. Wholesale Meats Ltd., 2016, it’s obvious the employer over-reacted to the situation in dealing with a person who’d only been on the job for a month and taking the view it was a matter of reliability, she said.

“They haven’t really clued into the fact that care for kids is not a reliability issue, it’s an issue that requires accommodation.”

While A.C.D. — citing the 2014 case of Canada (Attorney General) v. Johnstone in which a parent claimed she had a right to modified hours of work to accommodate childcare obligations — felt Miraka did not make reasonable efforts to find alternate arrangements, Johnstone was different in that it involved an employee looking for long-term accommodation, said Price. 

Johnstone was very much about a formal request, said Bawden.

“It was going to be a long-term, continuing issue — the employer could then foresee and budget around this issue, whereas this decision wasn’t, it was an ad hoc, kid-got-sick kind of thing, of indeterminate length — no warning, no ability for the employer to budget or foresee it and yet this was a decision that was reached.”

As a general rule, employees must plan for the care of their kids by setting up workable, reasonable childcare, said Jennifer Bernardo, an associate at Baker & McKenzie in Toronto.

“But to equate that to a couple of days where this man’s wife is sick and suggest he should be running off and looking for other childcare alternatives for a couple of days, those are distinguishable situations…. on a sporadic basis, things happen and people don’t have the time to do that, nor should they be required, as the court points out here, to hire someone off the Internet to come look after their kids for two days.

“Unless people are going to be expected to have ongoing backup plans when they have a spouse at home, which is not the law at this time, then when the spouse at home is incapacitated, I think it can be expected that the spouses at work may have to pinch hit that situation.”

But it can be difficult when an ill spouse is involved and, for privacy reasons, an employer can’t access medical information, said Taylor.

“To a certain extent, you just have to take their word for it that that’s what’s happening. And that’s always a little tricky because it is easy to abuse, frankly.” 

As for making reasonable efforts to find alternative childcare, Miraka said there was no one for him to call and everyone else was busy — and the tribunal said that made sense.

“I am not convinced that the requirement to demonstrate reasonable efforts to make alternative childcare arrangement applies in cases like this, where there is only an infrequent, sporadic or unexpected need to miss work to take care of one’s children,” said Price.

The tribunal basically said it would be more unreasonable to find a babysitter on Craigslist, which could place the children in harm’s way, said Bernardo. And the HRTO did not say an employee doesn’t have to make any effort to find other options, but there has to be a balance between trying to ensure there is respect for family obligations and ensuring a business is still running.

Accommodation should be a collaborative basis, taking into account what’s reasonable and practical in the circumstances while being case-specific, said Bernardo.

“Employers can and should make inquiries into the reasons for the need in order to establish that the code protection has been triggered. This includes, for instance, any relevant information and documentation substantiating the need.” 

And if a short-term need develops into a long-term need, the employer should ensure the employee has demonstrated reasonable efforts to find alternative childcare arrangements, she said.

Human rights legislation is becoming ever more entwined in employment law issues, said Bawden. 

While Miraka likely did not have the right to take time off to care for his children under Ontario Employment Standards Act, 2000 (ESA), the law is clear that the standards establish minimum standards, and the Human Rights Code clearly contemplates “family status” as a protected ground.

“Employers need to be wary that looking simply at the ESA might get them in trouble if they think they’re safe or protected because the ESA’s silent on this,” he said. “The human rights tribunal doesn’t care very much about what the ESA provides as minimums.”

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