We recently came across this new Ontario human rights decision
in the course of advising an Alberta employer on an employee child
care issue. There are relatively few Alberta decisions that speak
to this issue, so Alberta employers often have to look for guidance
from the Ontario, British Columbia, and Federal tribunals and
courts, when trying to navigate this difficult area of law.
In Miraka v A.C.D. Wholesale Meats Ltd., a
wholesale meat distributor made the poor choice of terminating a
delivery truck driver's employment after he missed 3
consecutive days of work. 2 of those days were missed because
he had to take care of his two children after his wife, who
normally watched them, became sick. The Tribunal determined
that the termination was unlawful and discriminatory.
It stated that "[i]n Canada (Attorney General) v.
Johnstone, 2014 FCA 110 (CanLII), the Federal Court of Appeal
clarified that the sorts of parental obligations that fall within
the protected ground of "family status" under human
rights legislation are substantive obligations that engage a
parent's legal responsibility to a child".
Dealing with the employer's argument that the Johnstone
decision meant that the employee was obligated to arrange alternate
child care , the Tribunal stated that it was "not
convinced that the requirement to demonstrate reasonable efforts to
make alternative childcare arrangements applies in cases like this,
where there is only an infrequent, sporadic or unexpected need to
miss work to take care of one's children...Rather, what comes
into play in cases like this one is the overarching principle that
a "bona fide childcare problem" has resulted in an
employee being unable to meet his or her work obligations....this
is a highly fact-specific inquiry, and each case must be reviewed
on an individual basis in regard to all of the
The Tribunal also did not accept the employer's argument
that the employee was obliged to try to hire, on short notice, a
stranger from "Craigslist" or "Kijiji" to care
for his young children, before the employee would fall within the
Human Rights Code's protections. It found that doing so may
have been inconsistent with the employee's legal obligations to
ensure the safety and well-being of his children.
Alberta employers should keep this decision in mind when
responding to an employee's last minute request or demand for
time off work to deal with childcare obligations, and even other
family needs. Arguably, and if the right facts exist, employees
could be protected under the Alberta Human Rights Act even
if they have made no efforts to seek out alternate child
care. The result is that they could be entitled to the short
period of time off, in most cases despite the negative impact that
their absence will have on the employer's operations.
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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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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