Company owner became frustrated after employee missed 3 days in a row due to family obligations and then an injury
An Ontario worker was discriminated against when he was dismissed for absences related to his family status obligations and a disability, the Ontario Human Rights Tribunal has ruled.
Jolando Miraka was a delivery truck driver for A.C.D. Wholesale Meats, a wholesale meat distributor in Toronto. He was hired in May 2012 and his duties included building customer orders in the cooler room first thing in the morning, loading the orders into his truck, and delivering them to customers. His shifts began at 5 a.m., except for Mondays, which were the slowest day of the week. His end time varied depending on the deliveries he was making.
Miraka’s wife had a traumatic birth experience in 2011 that led to related surgeries, resulting in physical issues and anxiety attacks that left her bedridden at times. On Monday, June 11, 2012, Miraka started work at 8 a.m. and worked until 4 p.m. However, in the afternoon his wife called him and asked him to stay home the next day with their two young children because she wasn’t well and didn’t want anything to happen to them.
Miraka knew his wife’s issues were serious and he didn’t want to risk leaving the children home unattended. He didn’t have any family to ask to look after the children on short notice because everyone was busy with their own lives.
Miraka spoke to A.C.D.’s office manager after his wife’s call, telling her he wouldn’t be able to work the following day because he had to look after his children. According to Miraka, the office manager told him it was fine and family was “number one.” However, the office manager later disputed Miraka said anything about his wife being ill and she only told him it was fine for him to stay home.
Miraka stayed home on June 12 as he had requested. However, the next day, when he was expected back, he didn’t show up for work and he hadn’t called A.C.D. before his shift to say he wouldn’t be coming in.
After his shift was supposed to start on June 13, Miraka called the office manager to say his wife hadn’t improved and he had to stay home again to take care of his children. He hadn’t slept well the previous night and claimed he was busy running errands and taking care of his family, so he was late calling in. He also felt it wasn’t necessary to call in before the start of his shift because the company already knew he was at home taking care of his family.
Return to work didn’t last long
Miraka returned to work on June 14 after missing two days. After he arrived, he went to the cooler room to start loading skids for his truck. He later testified the cooler room supervisor gave the order to start loading and when he picked up the first box, he felt a sharp pain in his side. He picked up a second box and felt a sharp pain again, so he stopped working. He went to the office manager and told her he was sorry because he had missed the previous two days, but he couldn’t work due to pain in his abdomen that started when he picked up a box. The manager suggested it might be his appendix and he should “do what he had to do.” According to the manager, A.C.D.’s owner was standing a few feet away and told Miraka, “I don’t think this job is suitable for you. Find yourself another job.” Miraka denied that he saw or spoke to the owner before he left.
The office manager thought it strange because as far as she knew, the drivers hadn’t started working yet. She asked the cooler room supervisor if it was possible Miraka had hurt himself picking up a box, but the supervisor said no because no one had started working yet. Other delivery drivers were standing around the office and no one was in the cooler room.
The office manager said Miraka called her the next day to ask to have his cheque sent home with another employee. He also mentioned he had a hernia. He followed up with another call to say he had a paper from his doctor he would bring in.
On June 19, Miraka returned with a Workplace Safety and Insurance Board (WSIB) form from his doctor indicating he could return to modified duties. He testified the owner came out of his office and told the office manager to “let him go” and give him his cheques. He again told Miraka to find a job somewhere else and “take unemployment.” Miraka insisted he could still work if he had a helper and asked for a written reason for dismissal. However, the owner refused and said he had “no time to waste.”
Both the owner and the office manager denied the owner was in the office or spoke to Miraka on June 19. They also both testified that the owner terminated Miraka’s employment on June 14 when he said he couldn’t work due to pain.
A.C.D. submitted the WSIB form and objected to the claim on the basis that the injury didn’t occur while he was working for the company, as no one had started work on the morning of June 14 when he claimed it happened. However, the WSIB allowed the claim and determined the hernia was work-related.
Miraka filed a human rights claim accusing A.C.D. of discriminating against him on the basis of family status and disability when it terminated him.
The tribunal found Miraka had a legitimate reason to take a day off when he found out his wife was ill and his children needed care. He didn’t immediately ask to go home when his wife called on June 11 because he was near the end of his shift and it wasn’t necessary to leave early. His absence the next two days, however, was due to his family status obligations and it would be unreasonable to expect him to leave his children essentially unsupervised and at risk of harm, said the tribunal.
“(Miraka) 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,” said the tribunal. “Accordingly, I find that (Miraka) had a (Ontario Human Rights Code)-protected need to be absent from work and take care of his children on the two dates in question.”
The tribunal also noted the “infrequent, sporadic or unexpected” nature of the situation didn’t provide an opportunity for Miraka to seek out alternative childcare arrangements, as Miraka had indicated when he said family members were busy with their own lives. It made the most sense for Miraka to be available when his wife suffered her anxiety attacks.
The tribunal also found that since the office manager granted Miraka the time off to take care of his family, it couldn’t then come back and use that time off against him as reason for dismissal.
No reason to make up injury
As for Miraka’s third day of absence, the tribunal found his inability to work due to a hernia was credible. Miraka provided a WSIB form filled out by his doctor that indicated he had a hernia. In fact, as it turned out, Miraka ended up having a surgical hernia repair on July 2, 2012. At any rate, Miraka was diagnosed with a hernia after he left work with pain that he didn’t have before that morning, said the tribunal.
As for A.C.D.’s position that Miraka couldn’t have injured himself at work because work hadn’t started yet, the tribunal stated that “it does not make sense to me that someone who essentially planned to stage a workplace injury so that he could claim WSIB benefits would claim to have hurt himself working before he had actually done any work at all.”
In addition, the WSIB approved Miraka’s claim for compensation for a work-related injury, which meant the injury fell under the definition of “disability” in the code, said the tribunal.
A.C.D. maintained that it dismissed Miraka for failing to call in before the start of his shift on the second day he stayed home. However, at the time of dismissal, the owner told Miraka and the office manager that it was a combination of that as well as his missing two days that factored into the decision. The owner indicated that he needed someone who came to work every day and Miraka was unavailable to do the work for three days in a row. In testimony, the owner stated that he needed people to work every day so he could deliver his product to customers. He didn’t think Miraka was suitable for continued employment with A.C.D. because “if a person does not come to work, how can I count on someone like that?”
The tribunal found Miraka wasn’t dismissed for failing to call in before the beginning of his shift. Instead, he was dismissed for his absences — two that were for taking care of his family and one that was the result of a work-related injury. As a result, the protected grounds of family status and disability were factors in Miraka’s dismissal, said the tribunal.
A.C.D. was ordered to pay $10,000 to Miraka for injury to his dignity, feelings, and self-respect from the discrimination. The tribunal noted Miraka’s short term of service and the fact non-discriminatory reasons — his failure to call in on the second day of absence — also played a part of the dismissal decision led to a damages award on the lower end of the scale for dismissal. Because Miraka received workers’ compensation from the date of his injury for three months, there were no damages compensating for lost wages.
A.C.D. was also ordered to have all managerial staff complete the Ontario Human Rights Commission’s online human rights training course.
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