Employer's actions for business reasons, didn’t interfere with eldercare responsibilities
An employer did not discriminate against a worker on the basis of family status when it rejected her request for additional time off to spend with her ailing mother, the Saskatchewan Court of King’s Bench has ruled.
The decision is notable for establishing that eldercare is included in the protected ground of family status in Saskatchewan and helps clarify the prima facie discrimination test, says Amy Gibson, a labour and employment lawyer at MLT Aikins in Saskatoon.
“It’s very likely, given this decision and in other cases dealing with family status, that eldercare would reasonably be found to fall within family status that has to do with a parent and child relationship,” says Gibson. “There doesn't appear to be any age limitations on that relationship and obligations that can arise from that.”
North Ridge Development Corporation (NRDC) is a developer of residential and commercial real estate in Saskatoon. It hired the worker in 2008 as a senior accountant and she became assistant controller in 2012.
The worker’s mother was diagnosed with cancer in 2018 at the age of 84. NRDC allowed the worker to work flexible hours so she could take her mother to medical appointments. However, the worker had to take a medical leave from Nov. 10 to Dec. 4 due to stress.
Trip with ailing mother
The worker decided to take her mother to Calgary to visit her son while NRDC was closed from Dec. 24 to Jan. 2, 2019. She planned to drive back to Saskatoon on Jan. 1, but her mother was enjoying their stay so she decided to stay longer. She emailed her supervisor to say that she would return to work on Jan. 7. HRDC consented to the additional days off and the worker returned on Jan. 7, leaving her mother in Calgary.
On Jan. 14, the worker requested a three-month leave of absence to take her mother to India to visit family. NRDC declined, as the first quarter of the year was the busiest for the finance department due to year-end reports.
Later in January, the worker’s mother grew depressed and wasn’t doing well in Calgary, so the worker immediately left without requesting time off. She didn’t report to work on Jan. 31 and she emailed her supervisor explaining the situation. She remained in Calgary for a week and didn’t provide a timeframe for when she would return to work.
The worker didn’t think her mother was ready to travel, although she hadn’t received any medical advice to that effect. She asked to stay off work until Feb. 18, but her supervisor said no because they would be short-staffed without her. The worker agreed to return to work on Feb. 11.
Employers are faced with an unsettled landscape across Canada when it comes to family status accommodation.
Letter from employer
On Feb. 7, the worker received an email from NRDC’s human resources manager with a letter stating that her absence was not approved and if she didn’t return to work on Feb. 11 she would be deemed to have resigned her position.
The worker explained the situation, but the HR director replied that her unauthorized absence caused undue hardship on her co-workers and NRDC during the busiest time of the year.
The worker returned to work on Feb. 11 and tendered her resignation effective Feb. 22. She said she felt guilty about not taking her mother to India and wanted to spend more time with her. She felt that the letter meant that NRDC would not accommodate any more absences.
After the worker worked her two-week notice period, she continued to care for her mother until she passed away in May 2019.
The worker filed a human rights complaint alleging NRDC discriminated against her on the basis of family status by not allowing her time off to care for her mother and refusing to continue to employ her with a discriminatory discipline letter. HRDC argued that family status protection under the Saskatchewan Human Rights Code only applied to childcare, not eldercare.
There has been a surge in requests for accommodation around child and eldercare, says an employment lawyer.
Broad interpretation
The court noted that human rights legislation must be interpreted broadly and liberally. The code’s definition of “family status” includes a parent and child relationship with “child” meaning “son, daughter, stepson, stepdaughter, adopted child and person to whom another person stands in place of a parent.” There is no reference to age, minor status, or dependence, the court said.
The court also noted that the words “person to whom another person stands in place of a parent” broadens the definition beyond just relationships of parental responsibility for a minor child and pointed to jurisprudence in Ontario, Nova Scotia, and the federal jurisdiction that recognized eldercare as falling within the protected ground of family status.
The court determined that the three-part Moore test should be used to determine if there was discrimination – did the worker have a protected characteristic, did she suffer an adverse impact, and was the protected characteristic a factor in the adverse impact. Other tests for family status discrimination – such as the Campbell River and Johnstone tests - were too restrictive and contrary to the objectives of human rights legislation, the court said.
“All the complainant needs to show is that a protected ground is triggered and that they were adversely impacted within their employment in relation to that protected status - that's why the Moore decision was followed instead of those other two cases,” says Gibson. “And with that, this decision is a really big decision for family status accommodation in Saskatchewan.”
“Before this case, it was unclear whether Johnstone applied, and now the court has definitively said you need to follow the Moore test – that’s the case in Alberta and now Saskatchewan, and I think there is an argument in other jurisdictions that they should follow Moore as well [for family status discrimination],” adds Gibson.
A worker’s family status discrimination complaint was dismissed after she couldn’t show why evening and weekend shifts made it harder to care for her elderly mother.
Business reasons, not family status
However, the court found that NRDC’s denial of time off in early February 2019 was not related to the worker’s family status. The company had already allowed her time off and flexible hours to deal with her mother’s illness and also allowed her to adjust her return-to-work date so she could stay in Calgary longer, the court said.
When the worker asked for additional time off, there was no medical information indicating that the worker’s mother couldn’t travel back to Saskatoon. Instead, it was because her mother wanted to stay in Calgary longer and the worker preferred to drive back the following week. NRDC’s denial of additional time off did not adversely impact the worker’s ability to care for her mother, said the court.
The court also found that the letter sent by HR did not cause an adverse impact on the worker’s eldercare responsibilities. The letter did not state or imply that the worker would no longer be allowed time off to care for her mother or that she would lose her position, the court said. In addition, NRDC’s reasons for sending the letter were because it needed her at work and she hadn’t provided a timeframe for her return, said the court.
The court noted that the worker returned to work on Feb. 11 and NRDC did not deem her to have resigned, so there was no discipline. It was the worker’s own evidence that she chose to resign so she could spend more time with her mother, the court said.
Canadians are facing increased personal expenses to care for an aging population, according to a report.
Employer supported eldercare needs
NRDC did a good job in handling the worker’s needs and that ultimately helped its defense, says Gibson.
“They were in regular communication with the employee, they provided her accommodation when she needed to attend medical appointments with her mother, they were flexible with respect to her requests for time off,” she says. “That played very well in court and it demonstrated that the decisions which triggered the complaint were not influenced by the fact that she was caring for her mother, they were influenced by work requirements.”
The court dismissed the worker’s complaint for failing to establish a connection between her family status and alleged adverse treatment.
“There arguably is no longer a requirement for employees to self-accommodate at the initial stage - under the Johnstone test, there was an obligation on employees to go out and seek ways that they could self-accommodate and adjust their personal lives to help them with childcare or eldercare obligations before prima facie discrimination was triggered,” says Gibson. “Under the Moore test, it is a much easier standard for employees to meet, so it becomes more onerous on employers for determining accommodation obligations.”
