Canada: Family Status: Latest Word From Ontario

Last Updated: June 25 2015
Article by Lisa Gallivan and Alison Strachan

Over the last few years we have discussed a number of family status decisions by human rights adjudicators and labour arbitrators. The law in this area continues to expand and grow. This case comment looks at a recent Ontario Human Rights Tribunal decision, Rowley v. 1145678 Ontario Limited and Stuart MacDonald 2015 HRTO 778 (CanLII) where Adjudicator Alison Renton found that an employer had not discriminated in terminating the employment of a mother with a special needs child. As is always the case, we recommend that readers click on the above link and read the full-text case for a full appreciation of the case.

What happened?

Ms. Rowley was employed by the respondent car dealership as a service coordinator from early January 2014 to mid-February 2014. She reported to the personal respondent, Stuart MacDonald.  Her duties included booking service appointments for customers, by telephone, email or in-person at her desk. Ms. Rowley alleged that she was terminated, in part, because she took personal calls about her child and was away from work on a couple of occasions because of her child. The employer denied this saying that her employment was terminated for "over socializing", not being at her position and performing her job, and returning late from lunch on more than one occasion.

When terminating Ms. Rowley, the personal respondent called her into his office and advised her that her employment was terminated. No reasons were given for her termination at that time. The termination letter that was provided to Ms. Rowley did not provide reasons for her termination. The Record of Employment issued gave the explanation "dismissal/termination within probationary period". Ms. Rowley was persistent in seeking a reason for her termination and Mr. MacDonald finally told her that although he had told her to stop socializing with certain people at the dealership, she had not. Ms. Rowley did not accept. She claimed that she was then told that she was terminated for taking personal calls at work, being late returning from lunch, socializing with the parts manager, and missing time from work. The employer denied this.

Ms. Rowley testified that she had received some personal telephone calls about her son from his school, a hospital and his therapist. She testified that she had taken time off of work when her son was sick and also when his school was closed due to the weather. She agreed during cross-examination that the personal respondent had authorized these absences to attend to these family matters. The employer testified that Ms. Rowley was terminated because of her socializing, lack of performance in her role, and extended lunches.

During her testimony, Ms. Rowley admitted that there were times she was not at her desk. She testified that she left her desk sometimes because she went into other departments to get information about clients, rather than calling the other department. There were other issues with her job performance that came to the forefront during the hearing including:

  • A co-worker testified that she would go to the accounting department, sit down, and have non-work related conversations with department staff and did not return to her department when told to do so;
  •  A co-worker testified that she had received calls from reception looking for Ms. Rowley;
  • A co-worker saw her sitting in the showroom talking with sales personnel about non-work related topics and in the lunchroom outside of breaks or lunch texting.

What did the Adjudicator say?

The adjudicator framed the issue as follows:

The issue that I have to determine is whether there was a discriminatory reason or discriminatory factor for the applicant's termination, contrary to the Code. The applicant asserts that her family status, the parent of a special needs child, was the reason for the applicant's termination or a factor in it. My role is not to determine whether or not it was fair or just for the respondents to have terminated the applicant. The Tribunal has stated in many cases that whether or not a situation is unfair is not within its jurisdiction.

Having said that, the adjudicator found that Ms. Rowley had not proven that family status was the reason for, or a factor in, her termination. The adjudicator then went on to say:

The applicant has not been able to prove that Mr. Herrmann knew that she was receiving telephone calls in relation to her child, special needs or not, or was taking time off work to attend to her child. She has not been able to prove that Mr. Herrmann was aware that she was receiving personal telephone calls and taking time off work, even if he was not aware that they were related to her child, or that these were factors in deciding to terminate her.

...

Similarly, with respect to the applicant taking time off work, I find that it is more probable than not that Mr. Herrmann did not mention this as a reason for the applicant's termination. The applicant and the personal respondent both testified that the personal respondent authorized her absences on the two occasions that she was absent from work in relation to her son. It is unclear whether or not the applicant was absent for two whole or partial days, but the evidence is that the personal respondent knew the reasons why she was not at work and authorized those absences.

Adjudicator Renton then said that the respondents had provided a "reasonable explanation" for the termination and that its three witnesses testified, and Ms. Rowley admitted, that she:

  • Had been absent from her post;
  • Had been socializing in other departments; and
  • Had returned late from lunch at least twice.

In conclusion, Adjudicator Renton said:

It is clear that the applicant disagrees not only with the reasons that were provided to her about her termination, but also with management's directions given to her within the workplace. However, at the end of the day I am not satisfied that the applicant has met her onus of establishing a prima facie case of discrimination on a balance of probabilities that a violation of the Code occurred. Accordingly, the Application is dismissed.

What are the takeaways?

The employee failed to prove that there was a prima facie case of discrimination based on family status because she failed to prove:

  • That the employer knew that she was receiving telephone calls in relation to her child; or,
  • That she was taking time off work to attend to her child; and,
  • That the employer considered these factors in deciding to terminate her.

Instead, the employer did the right thing by:

  • Authorizing absences for the employee in relation to her child, special needs or not.
  • Advising the employee of inappropriate workplace behaviour during her probationary period, provided feedback and a reasonable time frame on how to improve and correct that behaviour.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Lisa Gallivan
Alison Strachan
 
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