Employer lumped all absences, including those needed for taking care of elderly mother, together as reason for dismissal
Balancing an elderly mother and work
Employers are increasingly facing demands to accommodate the needs of employees with family demands that may affect their work schedule. Family status has become a protected ground for discrimination, and more Canadian jurisdictions are enshrining unpaid job-protected leave for compassionate care of family members. So employers have to be ready to consider any circumstances where an employee is trying to balance the caregiving responsibilities and their job duties.
As with any protected ground, discrimination can happen even if the main reason for dismissal or discipline is something else. As long as the employee’s family status is a factor, there is discrimination. Such as when an employee is fired for too many absences when some of those absences were for providing care for an ailing family member.
An Ontario company discriminated against an employee when it stopped allowing him to follow a flexible work schedule so the employee could take care of his elderly mother, the Ontario Human Rights Tribunal has ruled.
Francis Devaney was an architect with Zeidler Partnership Architects (ZPA), an architectural design company in Toronto. Employed with the firm since 1982, Devaney was assigned as the principal-in-charge of a team working on a major building project in downtown Toronto in 2007 and 2008. His duties on the project included negotiating the contract, delegating tasks and being the main liaison with the client.
The project was complex and demanding and took a lot of Devaney’s time. He worked a significant amount of overtime over 2007, which he put in both at home and in the office. Devaney didn’t receive extra pay for his overtime hours, and he worked less in 2008 when his mother’s health declined. However, he remained available “24/7” to both his team and the client, through email and his cellphone.
Employee cared for ailing mother
Devaney lived with his mother, who in 2007 was 84 years old and suffered from osteoarthritis and osteoporosis. Devaney moved in with her so he could take care of her. His caregiving responsibilities included preparing her food, lifting her to her wheelchair, cleaning her clothes, and taking her to medical appointments. He often used his computer and cellphone to work remotely when he couldn’t make it in to the office because of his caregiving responsibilities.
ZPA’s office manual stipulated employees could have flexible start and end times at work with approval, but employees were expected to be in the office or available for meetings during core work hours — 9:30 a.m. to 4:30 p.m. — during a project. Personal time off would be granted but had to be made up with overtime or a pre-approved schedule. Time off for longer than two hours had to be prearranged, and overtime had to be authorized in advance.
ZPA employees filled out time sheets to record their time working, and Devaney often wrote comments stating he was working at home in the early morning so he could help his mother and avoid traffic, arriving at the office around 10 a.m. and staying to 6 p.m. or 8 p.m. Some days, he would work at home at night or early in the morning while his mother slept. Devaney told his team and the senior partner about his caregiving responsibilities and that he could be reached at home when he wasn’t in the office.
ZPA became concerned with a pattern of attendance for Devaney, particularly with how often he was away from the office. Its records showed him working from home for several days and numerous instances of him arriving late and leaving early. Other days were missed for medical appointments. For some of the days, no reason was given for the absences.
On July 24, 2007, ZPA gave Devaney a letter expressing concern over various attendance issues, including coming in late and leaving early, as well as missing project meetings and excessive overtime claims. ZPA stated that it had “tolerated your absences for a long time in recognition of your personal and family problems,” but that it couldn’t continue and he must improve his attendance at the office.
Devaney responded to the warning by indicated that he was always available through email and cellphone, and he never missed a team meeting without delegating authority first. He also said no one on his team complained about not being able to contact him.
Battle of wills over office attendance
Over the next several months, Devaney continued his practice of frequently working from home, arriving late and coming in early so he could care for his mother and take care of personal matters. In April 2008, ZPA wrote him another latter stating that the attendance log showed he was not in full attendance for 56.6 per cent of the working days since the last warning letter. The company said there may be acceptable reasons for some of the absences, but the cumulative attendance rate wasn’t acceptable and was demoralizing to the team, which was suffering from a lack of direct contact with its leader. ZPA concluded that it would review his attendance every month and if he was absent on any business day without approval, his employment would be terminated for just cause.
By this time, Devaney’s mother’s health was declining and her care needs were increasing. The same day he received the second letter, he told the secretary that he had set up his home office. This was forwarded to the project manager, who then emailed Devaney, saying: “You can have an enjoyable retirement. In the meantime, you will work at the office for the entire working day except when attending documented meetings. Your attendance of late has been entirely unacceptable.”
Devaney pointed out that some of his absences were for business meetings, but also reiterated he was always available on his cellphone. He felt ZPA’s attitude didn’t take into account the unpaid overtime he had worked. More email exchanges followed with ZPA sticking to its insistence that Devaney be present in the office all day unless authorized otherwise, and Devaney insisting he needed to be away from the office sometimes to take his mother to appointments. However, Devaney didn’t ask for special accommodation or time off because of his mother, saying he could work from home.
Things came to a head again in August and September 2008, with ZPA warning once again that Devaney should be in the office all day every day. Devaney reiterated the overtime he worked and that he was always available, stating he would not let his work cost him his mother.
On Jan. 9, 2009, ZPA terminated Devaney’s employment for an “abysmal” attendance record and not informing it of any plans to improve, despite previous warnings. Though he was being terminated for just cause, ZPA informed him he would be given 34 weeks’ salary and eight weeks of benefits coverage.
During the termination meeting, Devaney said things could change because his mother was moving into a facility and he wouldn’t have as many caregiving responsibilities. After three days of considering this, ZPA offered to employ Devaney on a contract basis where he would be paid for each full day he attended the office. If the arrangement was satisfactory after three months, ZPA would extend the contract and make him a principal on the project. Devaney refused the offer as there was no indication the company would accommodate caregiving responsibilities going forward. He soon found work as a private contractor and filed a discrimination complaint.
The tribunal found that many of Devaney’s absences from the office were due to taking his mother to appointments or other caregiving responsibilities. However, not all of them were — Devaney specifically said some days he came in late to avoid the traffic, and also sometimes had his own appointments. It also wasn’t clear to what extent his morning responsibilities were, since he had a nurse come in to provide one hour of home care in the morning. The tribunal also felt it may have been possible for Devaney to hire more home care or get another family member — Devaney had a brother — to help out.
However, even though not all of Devaney’s absences were due to his need to care for his mother, the tribunal found many were. Since ZPA expected Devaney to be in the office every day, this had an adverse effect on him because of his family status. By terminating him because of all of his absences, without any differentiation, ZPA discriminated against him, said the tribunal.
The tribunal also found that although Devaney didn’t approach ZPA with a specific accommodation request, the company was aware of his caregiving responsibilities. Rather than seeking more information, it rigidly stuck to its insistence that he be in the office all day. This was a failure to live up to its duty to accommodate, said the tribunal. In addition, there was no indication Devaney’s absences caused undue hardship for ZPA, as Devaney was available on his cellphone or through email at all times, and no one on his team indicated they were suffering from a lack of face time.
