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Accommodation is a joint process

No failure to accommodate where employee does not provide sufficient information
employment law
In the recent case of Peternel v. Custom Granite & Marble Ltd., the Ontario Superior Court of Justice confirmed that if an employee does not cooperate in the accommodation process, they may not be able to prove discrimination.Google Street View

By Stuart Rudner and Anique Dublin

In the recent case of Peternel v. Custom Granite & Marble Ltd., the Ontario Superior Court of Justice confirmed that if an employee does not cooperate in the accommodation process, they may not be able to prove discrimination.

Tina Peternel was employed by Custom Granite & Marble (CGM) from May 2010 until December 2013, when she went on maternity leave. In 2011, she started working as a scheduler. Her work hours were 8:30 a.m. to 4:30 p.m. When she accepted the role as scheduler, Peternel knew that she would be required to work early mornings when CGM needed her there. Peternel, who had two children at the time, assured CGM that her childcare responsibilities would not prevent her from assuming the role because her mother could help out with childcare when needed.   

Peternel often arrived at work after 8:30 a.m. and her principal explanation for being late was that she had to take her two children to the morning school bus. CGM spoke with Peternel about her tardiness on a few occasions but she was never disciplined.

In December 2013, Peternel went on maternity leave. Her expected return date was December 2014, but it was extended to January 2015 with the consent of CGM. On Jan. 6, 2015, CGM met with Peternel to discuss her return to work. Immediately following the meeting, CGM sent her a written offer of employment which made it clear that she was required to start work at 8:30 a.m. The rest of the terms were substantially the same as prior to her leave.

 Peternel never returned to work. She said that she was unable to do so because she could not secure before-school daycare for her school-aged children and CGM would not accommodate her need to start later.  

As a result, Peternel brought an action against CGM for constructive dismissal and breach of section 5 (1) of the Human Rights Code.

On the first point, Peternel claimed that her working hours were from 10:00 a.m. to 5:00 p.m. prior to her maternity leave and that she was expecting the same schedule upon her return. By changing the hours, Peternel alleged that CGM had constructively dismissed her.

CGM argued that they allowed Peternel some flexibility with her hours and accommodated her following her two miscarriages and throughout her pregnancy, which she told them was high risk. However, they claimed that it was always understood that Peternel would be expected to come to work early in the morning when required.   

With respect to the code issue, Peternel alleged that CGM discriminated against her by refusing to accommodate her childcare needs.

The court dismissed the claim in its entirety.

The court first looked at section 53 (1) of the Employment Standards Act (ESA), which states:

“Upon the conclusion of an employee’s leave under this part, 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 court found that CGM did not constructively dismiss Peternel by insisting that she work from 8:30 a.m. to 4:30 p.m. because CGM proved that it had experienced changing business circumstances and therefore could no longer offer Peternel the flexibility of arriving at work later. CGM was not unilaterally changing the terms of Peternel’s employment; it was simply asking her to do what she had done throughout her employment, that is, “to be at work when [CGM] needed her to be there.”  

The court noted that:

“Accommodation is a ‘joint process,’ which requires the applicant to co-operate with the employer in the accommodation process by providing the employer with information concerning the family-related needs and working with the employer to identify possible solutions.”

The court found that Peternel did not provide CGM with important information regarding her childcare arrangements and needs. For example, she did not tell CGM that:

  • she had not paid for daycare and that without a firm January start date, she would lose all her daycare
  • it had been challenging for her to find daycare for her then 13-month-old infant
  • she had secured temporary before school care through a neighbour, which would bridge the gap until a before school daycare spot opened at her children’s school
  • unless she were permitted to start her workday at 10:00 a.m., even on a short-term basis, she would forfeit her daycare spots and be unable to return to CGM on any terms.

The court held that by failing to disclose her actual needs, Peternel frustrated any efforts that might have been made by CGM to accommodate her needs.

This case is a reminder to employers and employees that the accommodation process is a joint process and both parties are required to work together to identify a workable solution. Had Peternel provided her employers with an appropriate level of information regarding her childcare situation and need for accommodation, her case for failure to accommodate would have been much stronger.

Employees cannot simply request accommodation (of any kind) and then refuse to provide information that will allow the employer to assess the need for accommodation and the options available.

Anique Dublin is a law clerk and office administrator at Rudner Law in Toronto.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in Employment Law and Mediation. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.
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