Friday, 1 January 2016

Court Censures Employer After Refusing to Reinstate Employee Following Maternity Leave and Creating Childcare Chaos

What will be the court’s censure for an employer’s unwillingness to accommodate its employees’ childcare arrangements, except where legitimate, justifiable grounds exist for being unable to do so? According to the Honourable Justice Susan E. Healey of the Ontario Superior Court of Justice, no less than $20,000.

In her reasons for decision released January 19, 2015, and subsequently reported at Partridge v. Botony Dental Corporation, 2015 ONSC 343 (CanLII), affirmed on appeal 2015 ONCA 836, Justice Healey threw the proverbial book at an employer who not only falsely alleged just cause for dismissal, but also engaged in acts of reprisal and violated one of its employee’s human rights after the employee had taken maternity leave.

In another good hard look at the consequences of messing with an employee’s right to return to work following maternity leave, (see also the case of Bray v Canadian College of Massage and Hydrotherapy, 2015 CanLII 3452 (ON SCSM), a decision of the Ontario Small Claims Court, summarized by this blog in the post Ontario Small Claims Court Awards Human Rights and Punitive Damages after New Mom Constructively Dismissed,) Ontario’s judges continue to demonstrate that an employee’s right to take parental leave is pretty much sacrosanct.

Facts

In this case the plaintiff, Ms. Lee Partridge, sought damages and declarations arising from the alleged wrongful termination of her employment with Botony Dental Corporation. Botony operates a family and cosmetic dentistry located in Barrie, Ontario. The pecuniary claims of the plaintiff were $70,000, representing a notice period of 12 months, and a $30,000 for breach of her human rights.

At the time of trial, Ms. Partridge was 39 years of age. She is a dental hygienist by education and training. Partridge began her employment with Botony in March, 2004. There was no written employment contract. Her employment was terminated on July 19, 2011, making her term of employment seven years and four months in length. During that time she had two maternity leaves. The first ran from June, 2007 to July, 2008, and the second from June, 2010 to July, 2011.

Partridge was initially hired by Botony as a dental hygienist. In 2007, her role changed to that of office manager.

As the office manager, Partridge was responsible for the general operations of the practice, including managing patient bookings and staff schedules, answering phones, pursuing bad accounts, advertising for the practice, collecting and paying bills by cheque or corporate credit card, running advertisements for staff, interviewing, hiring and firing employees in collaboration with Balbinder (“Bo”) Jauhal (Botony's sole director, officer and shareholder), with Jauhal having the final decision, training staff, and dealing with maintenance issues.

At the time of Partridge's termination, the office hours of Big Bay Point Dentistry were Monday to Tuesday 10 a.m. to 8 p.m., Friday 8 a.m. to 4 p.m., and Saturday 9 a.m. to 4 p.m. The hygienists typically started at 10 a.m. The hygienists’ hours were Monday to Thursday 10 a.m. until 8 p.m., and Friday and Saturday 9 a.m. to 4 p.m. Between her date of hire as a hygienist and the day that she was given the position of office manager, Partridge's work hours were 10 a.m. to 6 p.m., Tuesday to Friday. She earned $35 per hour as a hygienist. There was no guaranteed minimum number of hours; they ranged from 20 to 35 hours per week. As a hygienist, she was only paid for the hours spent working on patient care. Once she accepted the management position, Partridge's hours changed to 9 a.m. to 5 p.m., although there is a dispute over the extent to which her actual hours fluctuated weekly within those set hours. She continued to work four days per week, Tuesday to Friday. While the hygienists were required to take an unpaid lunch break, as the office manager, Partridge worked through her lunch hours and was paid for that time. As an office manager, Partridge's rate of pay was $41 per hour. In 2009, which year was uninterrupted by a maternity leave, her total earnings from Botony were $70,100.

Prior to her return to work in July, 2011 following her last maternity leave, Jauhal told Partridge by way of text messaging that she was "booking her into the hygienist schedule with patients booked Tuesday 8-3, Wednesday 8-3, Thursday 9-3, Friday 8-3". Thereafter began a series of events and interactions between Partridge and Jauhal that culminated in Partridge being fired on July 19, 2011.

Position of the Parties

Ms. Partridge alleged that she was promoted to the position of office manager in March, 2007, and that it was therefore a position that she held for three years and four months. Prior to her return from her second maternity leave, Jauhal advised her that her position as office manager was no longer available, and forced her to assume her former job as a hygienist.

In doing so, Jauhal reduced Partridge's work hours, as well as the certainty of those hours. Partridge alleged that when she attempted to assert her right to be reinstated to her previous position and working conditions, Jauhal responded by way of reprisal. Jauhal insisted that Partridge work during hours that she had not worked prior to her maternity leave, including times that knowingly conflicted with Partridge's daycare arrangements. Met with further insistence from Partridge that she be reinstated on more favorable terms than were being offered, Jauhal terminated her.

Ms. Partridge alleged, among other things, that the refusal by Botony to reinstate her to her prior position was discriminatory, and a breach of the Ontario Human Rights Code and a breach of the Employment Standards Act, 2000. Further, being terminated after asserting her right to reinstatement amounted to a reprisal, and was another contravention of the Employment Standards Act..

For its part, Botony alleged that while it was able to reinstate Partridge to the position of office manager, and that the position remained open for her during her maternity leave, it was Partridge who requested that she assume her former role as a hygienist. She then demanded that Jauhal change the ordinary business hours of the dental practice by changing regular opening times from 10 a.m., to 8 a.m. As a result of Botony's refusal to alter the hours, Partridge began to systematically harass management and other employees. It was alleged by Botony that such misconduct and office disruption constituted lawful cause for dismissal.

There were two additional grounds advanced by Botony as cause for terminating Partridge’s employment. The first was an allegation that, in conjunction with an intention to set up a competitive dental practice in the same area, Partridge secretly copied and removed confidential and proprietary patient records and information from Botony. The second was that Partridge contacted, solicited and procured other dental hygienists employed by Botony for the purpose of having them join her new business. It was alleged that in using this proprietary and confidential patient information to her own benefit, Partridge caused Botony to suffer damages through lost revenue and decreased resale value. However, the claim for diminished business value was not pursued at trial as Partridge never opened a competing business or even came close to implementing the steps necessary to operate a dental practice.

Decision

For reasons beyond the scope of this post, Justice Healey dismissed the employer’s claims of having just cause for summary dismissal. The court awarded Ms. Patridge twelve months pay in lieu of reasonable notice.

With respect to Ms. Partridge’s claims that Botony had engaged in an act of reprisal, prohibited by the provisions of the Employment Standards Act, 2000, Justice Healey wrote the following in her reasons for decision:

[83] In its treatment of Partridge, Botony also violated the Employment Standards Act, 2000, S.O. 2000, c. 41 ("ESA"). The ESA grants employees the statutory right to access unpaid pregnancy and paternal leaves, and to be reinstated into their prior position once their leave comes to an end. Section 53 of the ESA states:

53. (1) 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.

[84] Neither the employer nor the employee is entitled to waive the above employment standard, and any such contracting out or waiver is voided by virtue of s.5 (1) of the ESA. Given that Jauhal testified that the office manager position remained open at the time of Partridge's return, it is mandated that she was to have returned to that position.

[85] The ESA also provides that no employer shall intimidate, dismiss, penalize or otherwise commit a reprisal against an employee because that employee asks the employer to comply with the Act, or exercises or attempts to exercise a right under the Act. As previously found, all of Jauhal's actions following Partridge’s reference to her rights under the ESA constituted a reprisal, the dismissal being the ultimate contravention of the Act.

With respect to Ms. Partridge’s claims that her rights, as guaranteed by the Ontario Human Rights Code had also been infringed, Justice Healey wrote this:

[86] The Ontario Human Rights Code, R.S.O. 1990, c. H.19, prohibits employment-related discrimination on a number of prohibited grounds. For the purpose of this case, the relevant prohibited ground of discrimination is that of "family status."

[87] The leading Canadian authority on family status discrimination is the Federal Court of Appeal's decision in Johnstone v. Canada (Border Services), 2014 FCA 110 ("Johnstone"). In that case, the Court found that family status incorporates parental obligations such as childcare obligations.

[88] Johnstone sets out the legal test to determine whether there is discrimination on a prohibited ground of discrimination, comprised of two parts. First, a prima facie case of discrimination must be made out by the complainant. If that is accomplished, the analysis moves to a second stage where the employer must show that the policy or practice is a bona fide occupational requirement and that those affected cannot be accommodated without undue hardship.

[91] Applying the first part of the test set out in Johnstone, I find that the plaintiff has made out a prima facie case of discrimination. There is no question that the first two factors are satisfied; Partridge was legally obligated to ensure that her children were adequately cared for while she was working. With respect to the third factor, [i.e. the employee has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible] when faced with the significantly revised schedule on July 13, 2011, and told that it was effective immediately, Partridge testified how she put in place a complex set of childcare arrangements involving a number of extended family members and a neighbour, in order that she could be available to work until 6:00 p.m. She testified that it was not a sustainable arrangement, and the court agrees with that assessment. Finally, the new schedule that required Partridge to work until 6:00 p.m. interfered with her fulfilling her childcare obligation in more than a trivial way. Not only would she be charged a significant sum for picking up her children after 6 p.m. from the daycare, but that fact necessitated her relying on family members and a neighbour, inconveniencing their schedules, or having her husband (who is self-employed) leave his business premises, with much room for potential “glitches” in those plans on any given day. By necessity, the plan differed for each child, as each was required to attend a different daycare because of their ages.

[92] The next part of the test set out in Johnstone demands the defendant to show that the requirement of having Partridge start at 10:00 a.m. and work beyond 5:00 p.m. was a bona fide occupational requirement. From the outset, this is a demanding task given Partridge’s work hours prior to her return. Nonetheless, having regard to the 3-part test from BCGSEU, was the necessity of having Partridge begin work as a hygienist at 10:00 a.m. , and working until 6:00 p.m., rationally connected to the performance of the job? No evidence was provided by the defendant. It does not stand to reason that patients would be unavailable before 10:00 a.m. Partridge began her workday at 9:00 a.m., or earlier, while she was the office manager, and no reasons were given as to why the office could not be opened at that hour. Based on all of the evidence heard around scheduling and the operations of this practice, the Court is unable to find that this rule or practice was a bona fide occupational requirement.

[93] The second question is whether the rule, standard or practice was adopted in an honest and good-faith belief that it was necessary to the fulfillment of that legitimate work-related purpose. As previously found, the requirement imposed on Partridge by Jauhal to work those hours was reprisal based, and accordingly not adopted in good faith.

[94] The third question raised in BCGSEU is whether the rule, standard or practice is reasonably necessary to the accomplishment of that legitimate work-related purpose. When Partridge was initially placed into the hygiene schedule by Jauhal, the hours provided to her in Jauhal’s text message of July 5, 2011 were completely different. Presumably, as of July 5, 2011, those hours suited the needs of the workplace and created no hardship to Botony. No satisfactory or credible evidence was provided by Jauhal to explain why those hours needed to be changed to those presented to Partridge on July 13, 2011. Evidence was also heard that there was an “evening” shift for the hygienists, which presumably began later in the day. No evidence was provided as to how the other hygienists’ schedules might be affected, negatively or positively, by the hours being requested by Partridge. This question must be answered in the negative as well.

[95] Botony having been unable to show that the hours that Partridge was asked to work were a bona fide occupational requirement or that she could not be accommodated without undue hardship, I find that there was discrimination by Botony on the basis of family status.

In assessing the amount of damages to award Ms. Partridge for the breach of her rights as protected by the Human Rights Code, Justice Healey reasoned as follows:

[96] Section 46.1 (1) of the Human Rights Code gives this Court the authority to grant a civil remedy to the plaintiff as a result of this discrimination…

[97] In Johnstone, the plaintiff similarly suffered discrimination on the basis of family status based on her employer's refusal to accommodate her childcare needs through work scheduling arrangements. She was awarded $15,000 for pain and suffering, and $20,000 for special compensation as a result of the Tribunal's finding that her employer had engaged in the discriminatory practice willfully and recklessly. These awards were not changed on appeal. While that case involved the Canadian Human Rights Act, R.S.C. 1985, c. H.6, the applicable provisions are similar to that of the Ontario Human Rights Code.

[Note: The reason the Canadian Human Rights Act applied in the Johnstone case, but the Ontario Human Rights Code applied in the Partridge case is because Ms. Johnstone’s employer, CBSA, is a federally regulated employer, whereas Ms. Partridge’s employer was provincially regulated. For a discussion of why different employers are governed by different laws, see my page Which Laws Apply?]

[98] The discrimination experienced by Partridge clearly did injury to her dignity, feelings and self-respect, as her testimony made clear that she took great pride in her job and the efforts that she had made on the defendant’s behalf. At the time of her testimony in this trial, she remained visibly emotionally affected by the ordeal. As in Johnstone, I found that the discrimination arose out of Jauhal's wilful and reckless disregard for her legal obligations as an employer. Accordingly, I found that the sum of $20,000 for breach of the Human Rights Code was a just and proper sum to signify the seriousness of breaches of this nature. Particularly where the discrimination has ultimately taken the form of dismissal, this particular breach affects a group of individuals who typically require childcare arrangements out of economic motivation. The discrimination not only has the effect of causing injury to dignity, feelings and self-respect, but may have an economic impact on individuals who can often least afford it. The Court’s censure is warranted by way of an award that will act as a deterrent to employers who are unwilling to accommodate childcare arrangements, except where legitimate, justifiable grounds exist for being unable to do so.

On appeal to the Court of Appeal for Ontario, both Justice Healey’s decision and award were upheld. In her reasons for decision released December 3, 2015, and reported at 2015 ONCA 836, the Honourable Justice Lois B. Roberts wrote the following on behalf of that court:

[19] I also see no error in the trial judge’s award to the respondent of $20,000 as compensatory damages under s. 46.1(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19. While on the high end, this award is clearly within the range supported by the case law and by the trial judge’s findings of the appellant’s wilful misconduct, which were open to her to make on the evidence at trial.

[20] Whether the framework under Johnstone v. Canada (Border Services), 2014 FCA 110 or SMS Equipment Inc. v. Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162 is applied, the result flowing from the trial judge’s very specific, fact-driven analysis, required under both decisions, is the same.

[21] On this point, the appellant [Botony] argues that there was no evidence to ground the trial judge’s findings that the respondent [Ms. Partridge] could not adapt her childcare responsibilities to her new work schedule or that the childcare arrangements that she put into place upon her return to work were not sustainable. I disagree.

[22] The respondent testified to a very complex arrangement of relatives and others whom she had asked to pick up her children from daycare. Her unchallenged evidence that the trial judge was entitled to accept, as she did, was that this arrangement was not sustainable.

[23] The appellant contends that the respondent’s work schedule in her subsequent employment demonstrates that she could and did make alternate, sustainable childcare arrangements and that her ability to do so undercuts her claim of discrimination by the appellant.

[24] I do not accept these submissions. Any comparison is invalid and unfair. First, there was no evidence as to the respondent’s childcare arrangements in her new position. Further, by October 2011, the respondent was working a shorter shift than with the appellant, from 4 to 8 p.m., and only one to two days a week. Finally, the complex arrangements that the respondent was required to put into place immediately upon her return to her employment with the appellant reflected a hasty, short-term solution to the chaos created by the appellant’s reprisal actions.

[25] The trial judge found that the appellant committed multiple and deliberate breaches of its obligations towards the respondent under the Employment Standards Act, 2000. In particular, its refusal to reinstate the respondent to the position of office manager following her maternity leave breached s. 53(1) of the Act; its commission of successively more draconian reprisals against the respondent, culminating in her dismissal without lawful cause, violated s. 74(1) of the Act.

[26] The trial judge concluded that the appellant’s unlawful actions amounted to discriminatory treatment of the respondent because of her family status, including, but not limited to, her childcare obligations, contrary to the Code. I agree with the trial judge’s findings. They are amply supported by the evidence at trial.

[27] The appellant’s improper actions caused injury to the respondent’s dignity, feelings and self-respect. They also materially affected her family’s economic security because of her family’s financial dependence on her salary. The appellant’s wilful misconduct and its consequences to the respondent are well founded in the evidence that the trial judge was entitled to accept.

In the result the appeal was dismissed in its entirety. The decisions stand and we have new case law in Ontario in support of family status accommodation.

Commentary

As a preliminary comment, a few things strike me as odd about this decision. First there was no award of damages for the reprisal, nor was there any award of aggravated or punitive damages. (Note that the court in Bray, mentioned at the outset of this post, found that the court lacked the necessary jurisdiction to make any award of damages for an act of reprisal. Deputy Judge Winny did award punitive damages in that, similar case.) My sense, simply from reading the court file number is that the Partridge case was commenced pursuant to the Simplified Rules of Procedure, which would have limited the amount of money that Ms. Partridge could have claimed. Moreover, at the time that this case was started, all of this would have been rather novel. Kudos to plaintiff’s counsel for having the chutzpah to take a run at it – especially in the face of some rather serious cause accusations.

Aside from the fact that I think things could have actually gone much, much worse for the employer, I am actually a little confused and surprised by how the case turns out. While the result is likely a reflection of what was claimed, as I see it, this was a case more of reprisal and breaches of the Employment Standards Act, then it was of breaches of the Human Rights Code. To be sure, the changes imposed by the employer created chaos with respect to Ms. Partridge’s childcare obligations, but I see such changes being wielded more as a spiteful weapon than anything else. While the same probably does not change the quantum of the award, I do return to my point that I find it peculiar that there was no sanction for the acts of reprisal themselves. C’est la vie.

The issue of no sanction for reprisal aside, the case is pretty straightforward. As Justice Roberts noted, since the Federal Court of Appeal’s decision in Johnstone, released January 2014, accommodation of childcare obligations has become a recognized, if albeit sometimes controversial, norm. Canada’s courts seem prepared to defend the principle that, in order to achieve gender equality in the workplace, protection of an employee’s childcare arrangements will be legally imposed. While such a position does not sit easy with everyone, I think it fair to say that the same is presently the state of the law. Prime Minister Trudeau’s comments concerning why he sought to achieve gender parity in cabinet (“Because it’s 2015”) only serve to reinforce this notion.

Takeaways for Employees with Labour Pains

The takeaway for employees is that in 2016 one should not have to be afraid to have a child. As I much more fully explain on my page concerning pregnancy leave questions, an employee’s right to take maternity and/or parental leave, (whether that parent is the mother or the father, and whether the child is born or adopted) is pretty much sacrosanct. Moreover, as cases like Johnstone, Bray and now Partridge demonstrate, employers that break the laws providing such protections will be punished.

If you are a worker in Ontario, and you are having trouble with your employer during your maternity/parental leave, the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.

Takeaways for Employers with Labour Pains

Employers of Ontario take note: Like it or lump it, if making a change to the terms of an employee’s employment will have a negative impact on an employee’s childcare obligations and that employee asks you to accommodate such obligations, you must (a) consider the ways by which you could provide such accommodations; and (b) actually accommodate such a request unless to do so would cause you undue hardship. Moreover, in advertising for new employees, you will need to be mindful of whether the requirements of the job, as advertised, may conflict with a potential employee’s childcare obligations – and therefore whether the requirements are truly “bona fide operational requirements.”

Getting this right will not be easy. A lot of employers are going to find a lot of these requests “ridiculous”. Those employers are going to learn the hard way that the law’s expectations have changed.

That said, the same is not to imply that employers must bend over backwards to accommodate every request that their employees may make. As the case of Flatt v. Canada (Attorney General), 2015 FCA 250 (CanLII), (summarized by this blog in the post Decision to Breastfeed a “Personal Choice”, which Need Not be Accommodated: Federal Court of Appeal,) demonstrates, unless the employee can demonstrate that the need for accommodation actually arises from a legal obligation and not a “personal choice” the employer need not accommodate the request. Of course, knowing on which side of the line a request falls is going to be complicated.

If you are an employer and you need to make changes to the terms of your employee’s employment, or if you are facing a request for accommodation by one of your employees, the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.



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