Recent case muddies waters on tailoring accommodation to individual
Employers are often in a no-win situation when it comes to accommodation. On the one hand, they are faced with head counts and cost issues; while on the other hand, they are consistently required to assess the various accommodation requests of their employees, which impacts their ability to run the business.
In the recent decision of Cane v. Jaytex of Canada Limited, 2024 HRTO 1705, the Ontario Human Rights Tribunal reminded us of the importance of assessing the obligation to accommodate on an individual basis, and that even when (in good faith) an employer may consider itself trying to assist an employee by giving advance notice of termination during the course of a leave, the termination decision will be deemed discriminatory, even if the employer demonstrates it was prepared to accommodate.
For employers, this decision serves as a further reminder of how “no good deed goes unpunished.” For employees, it demonstrates that the Ontario Human Rights Code is “remedial” legislation and will protect the interests of employees who are terminated during a leave, regardless of the attempts of an employer to do what it thinks is the right thing.
The employee worked for Jaytex of Canada Limited as the Director of Merchandising in its Private Label Division. She commenced a maternity leave in December 2018 and planned to return to work in December 2019. During the summer of 2019, Jaytex arranged a meeting with the employee, as it had restructured her role and inquired if she would be willing to move to a role in another division. The employee advised that she would be willing to accept the new role upon her return to work.
The employee met with the company again in November to discuss her return to work and asked for a modified schedule to permit her to drop off her son at daycare. She asked to start at 9 am instead of 8:30 am and offered to make up any lost time by working through her lunches and the company agreed to her proposal. The employee later asked the company if it would be closed during the Christmas holiday period leading up to the new year, as her son’s daycare was closed at that time. The company advised her that she could take that time off and start back in February 2020.
Around the same time, however, Jaytex began to discuss internal staffing issues, as it was not performing well and had lost business in the new division in which the employee was supposed to work upon her return. In internal correspondence around this time, the company identified the employee as one of a group of nine employees who would be terminated in the new year. At this point, Jaytex faced a decision that many employers have to make where a change to staffing may impact an employee’s return to work: is it better to wait until the return, or give them the opportunity to plan and advise them in advance?
Jaytex chose the latter and, in December, Jaytex advised the employee that there was no position to which she could return following her leave. This was done as a courtesy, in the company’s mind, to spare her from making childcare arrangements in advance of a return to work when she would be terminated for legitimate business reasons a few weeks later.
The employee did not see it that way. She commenced an application to the tribunal, alleging that her request for modified hours was a factor in the termination of her employment and that Jaytex had failed to accommodate her childcare-related needs.
Unlike most matters which are filed with the tribunal, the worker’s complaint resulted in a hearing. In assessing the employee’s allegations, the tribunal found that Jaytex had met its duty to accommodate the employee’s family status by agreeing to her scheduling requests and a delayed start to work. At the same time, however, the tribunal also found that the employee’s family status - her childcare needs as a working mother - was a factor in the company’s decision to terminate her employment in December and not in February with the other employees.
So, despite finding that there was no breach of Jaytex’s procedural and substantive duties to accommodate the employee, the tribunal found in her favour and awarded lost wages in relation to a bonus she would have received up to February and an additional two weeks’ notice. given that she was terminated in December and not February as scheduled.
The tribunal also awarded the employee $4,460 in a non-refundable deposit she had paid in order to secure a daycare spot for her son in December plus $15,000 in damages for injury to dignity, feelings and self-respect. While this is cold comfort to employers, the damage award was likely on the lower end of the damage spectrum, given the tribunal’s findings that Jaytex had taken steps to accommodate the employee’s childcare arrangements and that her termination was part of a larger group termination.
Employee requests for accommodation, especially in relation to family status, are often difficult to navigate. Remember that employee needs are protected, but preferences are not. The distinction between the two can be subtle, which makes it necessary for employers to assess the request for accommodation on an individual basis and, more importantly, ask questions about the child or eldercare accommodation request. In Ontario at least, this can include asking questions to determine what steps an employee has taken to assist in their own accommodation.
Legally, the framework for determining if discrimination exists depends on the jurisdiction. The federal approach (binding federally regulated employers) differs from that used by tribunals and courts in Ontario. In Ontario, the decision of Misetich v. Value Village Stores Inc., 2016 HRTO 1229, provides a three-part framework for addressing allegations of family status discrimination:
Federally, as set out by the Federal Court of Appeal in Canada (Attorney General) v. Johnstone, 2014 FCA 110, the assessment takes on more elements of the employee’s obligation to participate and assist in their own accommodation:
The federal case law imposes a higher burden on an applicant seeking family status accommodation, in that the employee must establish their efforts undertaken to address their family needs before the duty to accommodate is triggered.
The Jaytex decision is in line with Ontario case law, which requires that an employee co-operate in the accommodation process, but it stops short of establishing a separate test or burden that an employee must satisfy before the employer’s duty to accommodate is triggered. Here, Jaytex appeared to do everything right, except it failed to consider that the employee may have been ready and willing to return to work for a brief period of time.
And this is all in the face of a legitimate business decision to downsize the operation. In other words, the decision itself to terminate wasn’t at issue, but the timing was - specifically, the decision to terminate in December rather than wait, led to the breach of the code, not the decision itself.
Our view is that Jaytex did the right thing, for the right reasons, at the wrong time (according to the tribunal). Ponder whether or not had they waited, and the employee had expended time, effort, and money to secure child care, the decision would have penalized Jaytex in any event.
The decision brings no certainty. Instead, it continues to muddy the waters as to the proper process when it comes to accommodation. What may result is that more employers may revert to a more “by the book” assessment of accommodation - which may not, in the long run, assist the very employees the legislation is designed to protect.
Megan Cowan is a Partner in the Workplace Law Group and Lorenzo Lisi is the leader of the Workplace Law Group at Aird & Berlis in Toronto.
