Tuesday, 17 May 2016

Human Rights Adjudicator Allows Employee to Take Entire Summer Off to Care for Disabled Child

Is a request to take leave without pay from mid-July to the end of August, in order to care for one’s disabled child, a reasonable request, which an employer must accommodate to the point of undue hardship?

For most employers unfamiliar with the provisions of human rights legislation, the question may seem ridiculous or incredible. Certainly no employee could demand to have the entire summer off, simply because one’s child is not in school.

However, in a decision released by the Northwest Territories Human Rights Adjudication Panel, A.B. v Yellowknife (City), 2016 CanLII 19718 (NT HRAP), the answer was that the employee was entitled to have the requested leave of absence and a finding was made that the employer had discriminated against the employee, on the basis of family status, by failing to accommodate her to the point of undue hardship.

Facts

The complainant, identified in the decision only as “A.B.”, had a child who had been diagnosed with autism spectrum disorder. The complainant asked her employer, the Respondent City of Yellowknife to have the summer off work to care for her child. The City was not prepared to grant the request and proposed schedules that would allow the complainant to work evenings and weekends. The parties were unable to reach an agreement, and the complainant resigned.

By way of history, from 2006 to 2010, the complainant worked about twenty hours per week as a cashier-receptionist for the City.

The respondent’s witnesses knew A.B. had a child with special needs related to autism. They did not either question or inquire into the child’s diagnosis.

The complainant and her husband managed childcare around their work schedules.

The complainant moved to the position of full-time booking clerk in September 2010, reporting to the Programs Manager.

In the summer of 2011, the complainant asked for the entire school break off and was allowed to do so through a combination of annual leave and leave without pay. The Programs Manager and the Human Resources Officer recognized A.B. had a child with autism and could not find someone to care for her child. The leave was approved as an accommodation based on family status.

The complainant’s position came under supervision of the Facilities Manager from fall 2011 to spring 2012. In fall 2011, the complainant asked for the December school break off and was again allowed to take the time off work.

With respect to the summer of 2012, the parties disagreed on characterizations and perceptions. The exact words of the discussion were lost in time. Regardless, the end result was that the respondent was concerned the complainant was asserting preferences, whereas the complainant believed she was explaining her needs.

In terms of the actual ability of the employer to accommodate the request, the facts of the situation were generally as follows:

At the time, the City had approximately 188 full-time employees and around 40 part-time and casual employees with 20 to 25 additional hires during the summer.

The City did not have a policy specific to accommodation based on family status. It has accommodated employees on this basis, mainly with minor scheduling changes.

The complainant’s situation was unique in that it involved a child with a disability.

In the summer of 2011, the Programs Manager moved a summer student from a cashier position to the booking clerk position. There were normally four to five casual cashiers working at “the fieldhouse,” where the booking clerk position is located. That summer student made several errors, and the Programs Manager had to spend a weekend correcting errors in the computerized booking system. He had to have another employee make other corrections over the period of about a week.

The Facilities Manager and Programs Manager did not make plans for 2012 based on the experience with the summer student in 2011. They did not, for example, train a casual employee or summer student in advance to replace the complainant.

The Programs Manager attended human rights training in early 2012, where he learned accommodation can take into account the employer’s operational needs.

Decision

The Adjudicator found that the complainant had established that the City subjected her to discrimination on the basis of family status regarding her employment. The Adjudicator further found that the employer had failed to meet its duty to accommodate.

In making such a finding the Adjudicator relied heavily upon the decision of the Federal Court of Appeal in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII), which was reviewed on this blog in the post Employers Must Accommodate Parents - What It Means. At paragraphs 19-40 of his reasons for decision the Adjudicator considered the four-part test established in Johnstone for determining whether the complainant had established prima facie discrimination based on family status:

[19] The test for discrimination on the basis of family status is set out in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII) at para. 95:

…the individual advancing the claim must show (i) that a child under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

[20] On the first branch of the test, there is consensus that A.B. had a child under her care and supervision. The remaining branches of the test must, however, still be addressed.

[21] The second branch of the test requires a distinction between childcare activities that engage legal responsibilities from those which constitute personal choice. Human rights should not be trivialized by protecting activities such as dance classes, sports events, family trips or extra-curricular activities.

[26] I do not see the complainant’s comments as assertions of personal preference. The complainant was trying to express the impact of caring for her child on her personal and family life. The complainant had a child with a disability which was proving difficult to manage in 2011-2012. She was the child’s primary caregiver, and the one person who offered the best chance of allowing the child to function socially. In the circumstances, A.B. was engaged in fundamental childcare activities. The complainant would be legally accountable if she failed to fulfill the obligations she had undertaken as the primary caregiver.

[29] The third branch of the test requires an inquiry into the complainant’s efforts to meet her obligations through reasonable alternative solutions, including solutions other than workplace accommodation.

[30] The complainant’s efforts to make an arrangement with the City in September 2010 demonstrate an intention to address her childcare issues before she went full time. If there was not an agreement, there was at least an understanding the complaint had childcare needs to be addressed, which was reinforced when the respondent granted the complainant time off in 2011. The understanding does not establish an entitlement to any particular result. It simply shows the complainant was trying to find a reasonable solution.

[31] The complainant also made efforts to coordinate with her husband’s schedule. The City offered A.B. schedules that would work around their understanding of his schedule. From the respondent’s perspective, it was a simple matter of one or the other parent being available, and the complainant rejected an obvious reasonable solution.

[32] In my view, the respondent’s proposed schedules were not reasonably accessible. The complainant was the child’s primary caregiver, as the parent who researched his condition and met with the professionals regularly. She was the one who had the most success socializing her child, and who offered the best chance of allowing him to function. She was better equipped than her husband to take on these full-time responsibilities.

[33] The obligation the complainant faced was providing full-time specialized childcare, without the supports available during the school year through the Child Development Team and two education assistants. The complainant did not have the option of placing her child in summer camps in 2012. This was clearly not accessible for the reasons outlined in the letter from the Northwest Territories Disabilities Council.

[34] The City’s managers failed to appreciate the legitimate reasons for the complaint’s rejection of its proposed schedules, because again they failed to move past assumptions and appreciate the actual circumstances. [35] The third branch of the Johnstone test has been met. The complainant has established she found herself in situation where there really were no other reasonable alternatives to caring for her child in the summer of 2012.

[36] On the fourth branch of the test, “The underlying context of each case in which the childcare need comes into conflict with the work schedule must be examined so as to ascertain whether the interference is more than trivial or insubstantial.”

[37] The complainant gave ample evidence to show how working part-time would interfere with her childcare responsibilities. The evidence was available to the respondent through the many supporting documents she provided.

[40] The City failed to consider the effect of its proposed schedules in relation to A.B.’s childcare obligations. The Human Resources Officer, Facilities Manager and Programs Manager treated A.B.’s comments about stress and fatigue as a separate request which it was not.

With respect to the issue of whether the employer had established a bona fide occupational requirement for the complainant to work evenings and weekends, the Adjudicator wrote the following:

[42] The onus now shifts to the respondent. The City must establish that it needed A.B. to work the summer of 2012 for a purpose rationally connected to a legitimate purpose.

[43] There is no dispute about the complainant’s ability to fulfill the duties of the booking clerk position. The Programs Manager testified that the student hired to do the work of A.B. in 2011 made a number of errors which had to be corrected. There is a rational connection in this case.

[44] The City must next establish it decided A.B. needed to work the summer of 2012 based on honest and good faith belief this was necessary.

[45] The Programs Manager attended a course in human rights in early 2012. He took away from the course an understanding that accommodation need not be automatic but could take into account the employer’s operational needs. The Human Resources Officer and Facilities Manager embarked upon their discussions with the complainant with a view to applying a more principled approach to the complainant’s request for accommodation. The Human Resources Officer explained that accommodation must be dynamic and adapt to changing circumstances.

[48] The City nonetheless waited for the complainant to raise the issue before beginning to discuss alternatives to full accommodation. In the meantime, the respondent did nothing to address problems with the student by considering another substitute or training a replacement. The only party that could have done anything about the operational need for effective bookings was the respondent. The circumstances were not new, and should not have come as a surprise.

[49] If the respondent wanted to apply a more principled approach in assessing the accommodation based on family status, it accomplished the reverse. The respondent withdrew an accommodation granted in essentially the same circumstances in 2011, and placed the onus the complainant to establish a disability she did not have. The respondent did not make new or meaningful inquiries into the childcare situation, and discounted medical documents on the technicality they were not from the complainant’s doctor.

[50] The City has not established that its treatment of A.B. was made in an honest and good faith effort to fulfill a work-related purpose. On the contrary, if the intention was to apply a more principled approach, the execution was so flawed as to amount to bad faith.

[51] The respondent’s managers chose a cold and formalistic strategy when they had the training and experience to know better. The respondent acted upon suspicions about the complainant wanting vacation and “date nights” while ignoring or dismissing more pertinent facts about the actual childcare situation. The Human Resources Manager and the Programs Manager were not in any position to unilaterally decide the childcare issue was accommodated, which they did, while treating the complainant’s stress and fatigue as an isolated accommodation issue.

Finally, with respect to the question of whether the respondent employer had accommodated the complaint to the point of “undue hardship” the Adjudicator ruled as follows:

[53] The point of undue hardship is reached when reasonable means of accommodation are exhausted and only unreasonable or impracticable options for accommodation are left.

[54] The Programs Manager spent two weekend days making corrections, and that he had to get another employee to make other corrections over the course of a week. He estimated it would take about 29 hours to train a casual to the level where he or she could enter the bookings effectively. I do not consider the amount of time required to make these corrections, or to train a replacement, excessive.

[55] The complainant was only requesting leave without pay from mid-July to the end of August. She was prepared to take annual leave in early July, so the total period of her request was only 8 to 9 weeks. The summer is a slow period at the fieldhouse, and there were several casual cashiers who could have been trained to fulfill the responsibilities of the bookings clerk. The City hires summer students and could easily have assigned extra staff to enter bookings. The functions of the booking clerk are not so specialized they cannot, for the most part, be transferred to casual cashiers.

[56] The complainant’s request for the summer of 2012 off work would not have imposed an undue hardship on an organization with the size and capacity of the City. The proposal was entirely within the range of reasonable or practicable options.

As to a remedy, the adjudicator invited submissions on what the parties believed would be fair. It is possible that the two sides may resolve things before a final decision is reached.

Commentary

It is not very often that this blog references a case from the Northwest Territories Human Rights Adjudication Panel, and one must confess to learning of this case thanks to a blog post by Stuart Rudner on the excellent employment law blog First Reference.

From time-to-time some lawyers, practicing in the “south” or in the centre of the country may be unduly critical of decisions from other jurisdictions. This is not one of those times were such criticism is warranted. This is a well-reasoned, well-considered decision. It references many of the leading cases in the area of human rights law and is easy to follow.

Moreover and incredible as this may sound to some employers, the decision is likely correct. Accommodation of individual needs is a quickly expanding issue for employers. Employers must be aware of their duty to accommodate a host of individual employee issues from hidden disabilities, to childcare schedules, to providing summers off so parents can look after their disabled children. (Expect the case to soon be made that it is irrelevant whether the child is disabled, any parent should have the right to the summer off.)

If you are an employer you need to be aware of your obligations under human rights legislation. Plain and simple.

Takeaways for Employees with Labour Pains

The takeaway for employees with labour pains is that you may have the right to an extended leave of absence without pay in order to look after your disabled child, parent, or family member, regardless of what minimum leaves of absence may be contemplated by the Employment Standards Act, 2000.

If you are an individual looking for assistance with respect to the accommodation of your personal circumstances, the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP may be able to be of service to you.

Takeaways for Employers with Labour Pains

As an employment lawyer and a supervisor I understand an employer’s frustrations when I tell them that they have a duty to accommodate to the point of undue hardship. I further understand that it can be cumbersome to go through the process of considering ways by which an employee may be accommodated in order to meet the procedural element of the duty to accommodate. However, please allow me to assure you of one point: Getting this wrong is costly.

If you are an employer and find yourself frustrated by an employee’s request for accommodation, before you do anything, speak with an experienced employment lawyer who knows about human rights law. 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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