The Ontario Human Rights Tribunal (“Tribunal”) has ruled that the dismissal of an architect for excessive absenteeism was discrimination on the basis of family status given that a significant number of his absences were due to his role as primary caregiver to his elderly mother.
The Applicant had been employed as an architect at an architectural firm (the “Firm”) for 27 years and was a principal of the Firm. The Applicant also served as his mother’s primary caregiver dealing with regular and unpredictable health issues and assisting with her daily needs when she became incapacitated. Although he continued to work full-time hours at the Firm, he was often away from the office during core work hours and had many absences as a direct result of his care-giving duties.
Despite informing the Firm of the nature of these absences, the Firm did not inquire into the Applicant’s eldercare responsibilities or consider whether he needed accommodation. Instead the company insisted that the Applicant be present in the office daily between 8:30 a.m. to 5 p.m. The Applicant was ultimately terminated for his repeated absences.
The Tribunal ruled in favour of the Applicant, affirming that employees have a right to receive accommodation to care for their parents and that the Firm’s attendance policy was discriminatory. The Tribunal concluded that in order to establish a case of discrimination on this basis, the Applicant needed only to show that his employer’s attendance requirements had an adverse impact because his absences from the office were required due to care giving responsibilities. However, the Tribunal noted that if the Applicant was merely choosing to provide care rather than it being a family responsibility, a prima facie claim of family status discrimination would not have been made out.
The Applicant was awarded $15,000 in general damages, despite the fact that he found another job shortly after his termination.
This case appears to be the first time an administrative tribunal in Canada has dealt with the issue of a family status discrimination involving eldercare responsibilities. In a similar vein, the Federal Court recently upheld a decision of the Canadian Human Rights Tribunal pertaining to the extent an employer is required to accommodate an employee’s childcare requirements. Given this evolving area of discrimination, and the requirement that such situations be accommodated to the point of undue hardship, employers must be careful when dealing with employee requests for time off to tend to family responsibilities.
If you have any questions about the implications of this decision on accommodation in the workplace, or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
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