An employer’s duty to accommodate employee childcare obligations was in the spotlight again recently at the Ontario Court of Appeal. In Partridge v. Botony Dental Corporation, the plaintiff employee was a trained and experienced dental hygienist. The defendant employer was a dental practice where the plaintiff had worked for over four years, initially as a hygienist and then as the defendant’s office manager.
The employment relationship began to break down when the employer advised the plaintiff, before the end of her second maternity leave, that she would not be returned to the office manager position but would instead be offered shifts as a hygienist upon her return. Her wage was also reduced. The plaintiff objected to the changes and insisted that the employer respect her rights under the Employment Standards Act and the Human Rights Code.
Unfortunately, the employer refused to return the plaintiff to her former position of office manager, even though the position was still available. To make matters worse, the employer began to schedule shifts for the plaintiff that unduly increased her hours and made it impossible for her to coordinate her work with her childcare arrangements. The trial judge found that this move was deliberate, in order to cause hardship for the plaintiff, and therefore constituted a reprisal. When the plaintiff did not resign, the employer terminated her, allegedly for cause. The Court, however, found that the plaintiff was wrongfully dismissed.
The Court also found that the employer breached the plaintiff’s human rights by discriminating against her on the basis of family status because of the employer’s unilateral shift assignments, which were not compatible with the plaintiff’s childcare arrangements. In fact, the trial judge accepted that upon being forced back into shift work as a hygienist, the plaintiff was required to depend on numerous family members, and even a neighbour, to assist with childcare obligations; a situation the court found to be unsustainable.
The trial judge confirmed that the leading case on family status discrimination is the decision of the Federal Court of Appeal in Johnstone v. Canada (Border Services). (For more information on this decision, please read our previous blog post.) Not surprisingly, the Court of Appeal agreed. It was particularly telling, and seemed to underpin the trial judge’s decision on this issue, that the employer failed to adduce any evidence whatsoever about the necessity to change the schedule of the plaintiff’s shifts, thereby preventing the employer from demonstrating that the scheduling of the shifts was a bona fide occupational requirement.
The trial judge awarded the plaintiff $20,000 for the injury to her dignity, feelings and self-respect. The Court of Appeal upheld the quantum of this award because the facts of the case, as found by the trial judge, supported such an award. The Court of Appeal did note, however, that the award was on the high end. The trial judge also had the following to say about the importance of accommodating family obligations:
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.
Top 5 Considerations
- Employers should have written policies outlining its obligations to consider childcare accommodation requests;
- Both employers and employees should know that it is an employee’s childcare needs that must be accommodated, not an employee’s preferences;
- Employers should be flexible in considering accommodation requests, and permit the employee to offer up solutions. After all, employees have the most information about their childcare obligations and likely have the best understanding of how their work will get done if an accommodation measure is implemented;
- All accommodation measures need not be long-term. Many employee requests can be satisfied on a short-term basis while alternative childcare arrangements are put in place; and
- If an agreement is reached after a request for accommodation, reduce the terms to writing and be sure to include the expected duration of the accommodation. Do not forget to follow up periodically to determine if the accommodation is still necessary or if a less disruptive alternative may be feasible.