Tag Archives: duty to accommodate

The Duty to Accommodate Child Care Responsibilities

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by Michael V. Coyle. JD*

Under federal and provincial Human Rights law it can be illegal for an employee to refuse to an employee’s reasonable request for child or elder care accommodation.

Two very recent cases from the Federal Court of Canada illustrate the current state of the evolving law of “family status” claims.

In one case, a freight train conductor was fired by Canadian National Railway when she refused a temporary work assignment in another province (required under the Collective Agreement) because she could not find anyone to look after her two and six year-old children after normal working hours while she was away. The children’s father also worked for CN as a locomotive engineer and he was away working for periods of 14 to 24 hours.

In the other case, the Canadian Border Service Agency refused the employee’s request for fixed shifts so she could arrange for the care of her two young children upon her return from maternity leave. Her husband also worked for CBSA on rotating 24/7 shifts. CBSA had an unwritten policy that fixed shifts were reserved for part-time workers and told this woman that she would have to give up her full-time status if she wanted fixed shifts, with the resulting loss of pension and other benefits.

Each case went before the Canadian Human Rights Tribunal and in each case the Tribunal held that the employer had illegally discriminated against these women on the basis of their “family status”. The Tribunal found in both cases that the employer had failed to discharge its duty to accommodate.

In the CN case, the Tribunal ordered the worker’s reinstatement without loss of seniority with reduced compensation for her lost earnings (due to failure to mitigate), plus damages for pain and suffering and the employer’s “wilful or reckless conduct” totalling $35,000, plus interest. CN was ordered to amend its policies and provide corrective training for its managers.

In the CBSA case, the Tribunal ordered the employer to cease its discriminatory practices and to compensate the employee for her lost wages and benefits, including overtime and pension contributions. That Tribunal also ordered CBSA to pay damages amounting to $35,000 plus interest at the Canada Savings Bond rate.

Canadian National and the federal government each sought judicial review of their respective cases before the Federal Court of Canada. The Court agreed with the Tribunal in separate decisions (with minor variations in CBSA case) written by the same judge and released a day apart in late January and early February, 2013.

Significantly, the Federal Court judge rejected the more stringent test to be applied to employee claims under family status that the British Columbia Court of Appeal used in the “Campbell River” case (2004) under which the employee is required to prove that there has been a “serious interference with parental or other family obligations”, which the BC appeal court said would usually be “difficult to make out”. In these cases the Federal Court opted for a more moderate test that requires the employee to prove simply that she had taken appropriate steps “to reconcile family obligations with work obligations”.

It is of interest that both of these cases involved unionized employees under Collective Agreements. Presumably, the Union could have proceeded to advance these family status claims before a grievance arbitrator but the employees involved (apparently) chose to go to the Canadian Human Rights Tribunal. It is impossible to know from the Court decisions what role the unions involved played in the proceedings, if any. But unions cannot  be mere bystanders in these cases. Unions not only owe a duty of fair representation to their members but they also have a positive legal duty to oppose discrimination in all forms in the workplace. In the CBSA case, the federal government made a formal motion to add the Union as a party before the Tribunal but that motion was opposed by both the Human Rights Commission and the complainant and the motion was dismissed by the Tribunal in separate reasons.

Of course, it makes no difference from a legal standpoint whether the affected employee is in a union or not. These rulings apply with equal force to non-union employees.

While both of these cases dealt with child care situations, it must be noted that the principles involved would apply equally in “elder care” situations as well. Elder care is, of course, of increasing concern to many families.

It is unlikely that these two recent Federal Court rulings will be the last word on the subject of family status claims. These rulings may be appealed, of course, and if they are not, other cases likely will be. Eventually, the Supreme Court of Canada will have to provide guidance on this very significant issue.

In the meantime, lawyers, tribunals, arbitrators and judges will struggle on a case-by-case basis to determine when the duty to accommodate is triggered by child (or elder) care obligations.

The message to employers, large and small, is quite clear: the law recognizes a duty to accommodate your employees’ family obligations. While the exact point at which that duty might be triggered may still be in some doubt, it would be foolish (not to mention potentially very expensive) to ignore your employees’ family care obligations. This is a very specialized area of law and employers (and employees) would be wise to consult with knowledgeable counsel should these issues arise in your workplace.

*Michael Coyle is an experienced employment-labour relations lawyer and a neutral mediator and arbitrator based in Kentville, Nova Scotia. Information provided in this article is meant for general interest only and is not a substitute for legal advice about your own situation. Michael can be reached by email at [email protected]  For more information and tips on employment and labour law issues, visit his website at www.michaelcoyle.ca

©Michael V. Coyle, 2013

Regular Employee Performance Appraisals a Must

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by Michael V. Coyle, JD*

Sally’s job performance had been slipping. The boss grumbled but did nothing. Recently, she missed an important deadline that cost the company a contract. She used the ‘excuse’ that she was often distracted by her home situation because, as the employer knew, she had to look after her elderly mother with progressive dementia. The boss didn’t buy it and she was fired for poor performance.

Joan’s work was first rate. She was up to any challenge. The boss and the clients loved her and she was a real asset to the company with a bright future, which everybody just assumed she knew. Then she quit to work for a competitor and many of the clients followed her out the door.

In neither case did the company do regular employee performance appraisals. And in both cases it cost them.

Sally sued for wrongful dismissal and won. The company was unable to document her “increasingly poor performance” leading up to her dismissal and, even worse, was unable to show that there had been any warnings or counselling or any progressive discipline before she was fired for that “one incident”. She testified that her boss was irritable and unapproachable and made snide comments all the time. She also successfully brought a human rights complaint against the employer because the company had failed to accommodate her family situation and therefore had discriminated against on grounds of her family status. All told, with legal fees and damages, the cost to the employer was well in the six figure range.

If Sally had had regular performance appraisals not only would the employer have a record of her deteriorating performance and their efforts to help her improve it but they would likely have been made aware of her home situation. Human rights tribunals across the country are increasingly placing an onus on the employer, once they are aware of a potential human rights issue, to explore that with the employee and discuss accommodation. A routine performance review would have provided that opportunity.

The failure of Joan’s employer to have regular performance appraisals meant that it missed the opportunity to tell Joan how great she was doing, to thank her for her efforts and to discuss her future with the company. Instead, she felt taken for granted and that her accomplishments were unnoticed and unappreciated. She was particularly disappointed that the company never asked for her input on what they could do to be a better employer. When the competitor offered a more progressive employment package that included support for employee growth and development (based on regular reviews) she was off like a shot.

Performance reviews do not need to be a torment – for either the employee or the manager. Performance appraisal forms should avoid ‘check boxes’. They should permit both the manager and the employee to give a narrative answer, without the incessant ‘excellent, good, fair, poor’ categories or their numerical equivalents.

The purpose of these reviews is twofold. They provide an opportunity for the manager to give feedback – both positive and negative – so that the employee knows where they stand, good and bad. And they give both parties an opportunity to look towards the future in a constructive and mutually beneficial way.

It is legally very risky indeed for an employer not to have regular performance reviews with all of their employees. It is equally risky for employees to work for such an employer.

Regular performance reviews should, of course, be tied to a currently updated company employment policy. But that’s another topic.

*Michael Coyle is an experienced employment and human rights lawyer based in Kentville, Nova Scotia. Information and opinion expressed in this article is meant for general interest only and is not a substitute for legal advice about your own situation. Michael can be reached by email at [email protected]  For more information and tips, visit his website at www.michaelcoyle.ca

©Michael V. Coyle, 2012

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Human Rights Law: Practical Tips on the Duty to Accommodate

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by Michael V. Coyle, JD*

“How long do I have to keep a job open for someone who is off sick?” is a question I have been asked by any number of employers over the years.

The most important thing to understand in answering that question is that it is not strictly an employment law question. It is actually a Human Rights question. The Duty to Accommodate is a doctrine devised by the courts to enforce human rights laws that prohibit discrimination. The duty to accommodate applies to all prohibited grounds of discrimination (age, gender, race, religion, disability, health, political beliefs, family status, etc.), not just sickness or injury; and it applies to all who provide services or accommodations (landlords, for example), not just to employers.

That is important to know because Human Rights laws are “quasi-constitutional” in nature and they take precedence over all other laws except the Constitution of Canada itself.

So, while employment law might say that an employee who is absent from work due to illness has breached their employment contract by failing to come to work, Human Rights law says “not so fast”.

The duty to accommodate is by no means a “new” development in the law. It has been the law in Canada for over a dozen years and it is one that continues to evolve.

Essentially, an employer must accommodate the employee by putting them on a leave of absence without pay, while holding their job for them and keeping it there “to the point of undue hardship” for the employer. You will note that is to the point of “undue hardship”, not simply “to the point of hardship”. The law assumes that there will always be some hardship involved for an employer in every accommodation.

So, what might be considered “undue” hardship? The law has not established a time limit or time formula for determining when a medical absence becomes an undue hardship. Each case has to be looked at on its own. Generally, an extended absence might create an undue hardship for the employer when, for example:

  • The employer is unable to attract or retain persons qualified for the position because it is not being offered permanently.
  • The cost of paying an employee’s benefits while that person is not working becomes unreasonable.
  • The employee’s skills or qualifications become outdated.
  • A new business focus or approach no longer requires the employee’s qualifications or skills.

That is not to say that, at some point, a prolonged absence will not by itself become an undue hardship and violate the employment contract. It is just to say that it can be difficult to show exactly that the point has been reached that the employer can legally let the absent employee go.

The next question (more of a statement, really) that employers typically ask is: “Well, if I have to accommodate this person then I have the right to know the precise details of their medical condition, right?”

The answer is “no”. An employer is only entitled to receive the information necessary to enable it to accommodate the employee. This will include medical verification that the employee has a legitimate illness, and a professional estimate of how long the employee will need to be accommodated.

It is important to understand that just because a person had a right to be accommodated that does not mean that their privacy rights go out the window.

Although they rarely admit it, some employers (and, sadly, even some lawyers) seem to think that they can thwart the employee’s human rights and, in effect, make them “go away”, by demanding  embarrassing or unnecessary medical information. That can be a very dangerous tack for an employer to take.

If the doctor is unable to say how long the employee will likely be off work that may, or may not, end the employer’s duty to accommodate. If the doctor is simply saying that the prognosis is uncertain at present or perhaps that further tests are needed or that a specialist is being consulted, that would probably not end the employer’s duty. If, on the other hand, the doctor is saying firmly that the person will be off work “for the foreseeable future” and there is no “return to work date” available, then that may well end the duty.

On the other hand, the employee is required to co-operate with the employer and obtain medical verification that can reasonably assist the employer in its duty to accommodate. An illegible or cryptic note scrawled on a prescription pad saying something like “Joe is off work until further notice” is not likely to be sufficient. Frankly, the problem here is often with the doctor, not with the employee. Some doctors still believe that a handwritten “doctor’s note” is all that anyone needs and some doctors may  take offence at any suggestion that their authority to “put someone off work” is apparently being questioned by anyone.

A lot depends on how the employer approaches the question of medical verification with the employee. If they do so with obvious suspicion and mistrust – as though they are trying to drive a wedge between the employee and their doctor – the  results and the quality of information they receive are often predictable. However, if they take a more open-minded approach from the perspective of an employer who is genuinely trying to accommodate their employee, the results in my experience are much more satisfactory for all concerned.

In cases where the employee is able to return to work on limited or modified duties, the employer is entitled to have professional verification that the employee has a legitimate functional limitation, a description of the limitation to help the employer accommodate that limitation.

I have only discussed here the most common situations where an employee has been “put off work” because of an illness, be it physical or mental. That would, of course, include what are often called “stress leave” situations. More complex situations where employees have on-going disabilities that need to be accommodated in the workplace, or that might involve workplace safety concerns, or ones that involve determinations of “bona fide occupational qualifications”, will require different assessments.

So, too, will cases where the discrimination that must be prevented by accommodation is based on grounds other than illness or disability, such as those based on gender, religion or family status.

I cannot emphasize enough how important it is for employers to get competent advice before committing to a course of action in these cases. This is a highly specialized area of law. The fact is that early, knowledgeable advice can actually save you a lot of money in these cases. There is very little that a lawyer can do for you once a Human Rights complaint is filed except provide expensive representation at a human rights hearing or in a lawsuit that probably could have been avoided with experienced legal advice in the first place. If in doubt, you should seek a second opinion.

For legal advice about your personal or business situation, please contact me.

*Michael Coyle is an experienced employment, labour and human rights lawyer based in Kentville, Nova Scotia. Information and opinion expressed in this article is meant for general interest only and is not a substitute for legal advice about your own situation. Michael can be reached by email at [email protected]  For more information and tips, visit his website at www.michaelcoyle.ca

 ©Michael V. Coyle, 2012

 

Employment Basics – What Every Employer and Employee Should Know

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by Michael V. Coyle, JD*

Every employee in Nova Scotia has a contract with their employer – whether they work full time, part time, seasonal or casual. The contract exists whether they have been working there 10 years or 10 minutes. In relatively rare cases the contract might be in writing, but in the vast majority of cases the contract of employment is unwritten. But it is still a contract in the eyes of the law.

The essence of the contract of employment is that the employee will faithfully carry out their assigned duties and the employer will pay the employee an agreed wage or salary and benefits. The contract continues until it is lawfully terminated by one party or the other.

In theory, an employer is free to terminate the contract at any time.

If the employee has breached the contract by failing to live up to his/her end of the bargain as a faithful employee that is called a “termination for just cause”. In plain language, the employee is “fired”. In that case, the employer owes the employee nothing except wages and benefits due to the date of firing.

But if the employer fires the employee without “just cause”, the employer must pay the employee an amount of money in lieu of the “reasonable notice” that they should have received from the employer. If the employer refuses to pay, the employee can sue the employer for wrongful dismissal. Generally, the employer’s financial position is not “just cause” for dismissal, nor is a decision by the employer to “restructure” or “down-size” their operation.

The determination of the amount that the employer must pay for wrongfully dismissing an employee is based on a variety of factors. These include the employee’s age, education, training and family circumstances, the time that it would likely take to find comparable employment in that business, trade or industry in that geographic area, the length of time the employee has worked for the employer and the kind of job or position they held with the employer. On the other hand, a unjustly dismissed employee has a legal obligation to look for work and take a comparable job if it is offered.

If the employer tries to avoid its obligations under the contract of employment by forcing the employee to quit, for example, by changing the employee’s fundamental terms of employment without their agreement, that might be a “constructive dismissal”. In that case, even though the employee quit, they can still sue the employer for wrongful dismissal.

Employers cannot discriminate against employees – before and after hiring – on  any of the grounds set out in the Human Rights Act. They have a legal duty to accommodate employees who are sick or who have disabilities. Employees are forbidden from harassing other employees on any of the prohibited grounds of discrimination under the Human Rights Act.

The Occupational Health and Safety Act prohibits “workplace violence”. That term now includes workplace harassment and is broader than the definition used under the Human Rights Act in that it can include meanness and nastiness from both supervisors and other employees.

Employers and employees must of course abide by the Labour Standards Code and, generally, employers have an obligation to continue additional benefits they have customarily provided to their employees beyond the Labour Standards Code. The Labour Standards Code provides that, once an employee has worked for an employer for 10 years, they can only be dismissed for “just cause”. A 10 year employee who has been fired without just cause can seek reinstatement to their former position, with back pay for lost wages, under the Labour Standards Code.

A “lay off” is a reduction in the workforce due to a shortage of work caused by the employer’s inability, in good faith, to secure orders or work or other circumstances (like fire, natural disaster, strikes or lockouts by suppliers or key customers, etc.) that are beyond the employer’s control. A “lay off” should not be confused with a “termination” or “dismissal”. Laid off employees are not “fired” and they have a contractual right to be recalled to work once the reason for the “lay off” has gone away. An employer who hires a new employee to replace one who has been “laid off” risks being sued for wrongful dismissal.

The law has changed in recent years concerning probationary employees. A judge of the Supreme Court of Nova Scotia recently summed it up this way: “The era when an employer could arbitrarily terminate a probationary employee without obligation or explanation is past.” In most cases, probationary employees can now only be dismissed for documented “just cause”, like regular employees.

In a unionized workplace, the employer and the Union bargain for terms of employment which are set out in the Collective Agreement. Generally speaking, a unionized employee cannot sue the employer for breach of the Collective Agreement, but instead must go through the Union by way of the grievance procedure in the Collective Agreement to seek justice. Unions, in turn, owe the employees they represent a “duty of fair representation” under the Trade Union Act.

If you are an employer or an employee and an employment law issue arises you should consult with a knowledgeable employment lawyer before taking any actions. Employment law is a specialized field. Most employment law cases can be resolved out of court with the help of experienced legal counsel.

 

*Michael Coyle is a Chartered Professional in Human Resources and a retired employment and labour lawyer based in Kentville, Nova Scotia. Information expressed in this article is meant for general interest only and is not a substitute for professional advice about your own situation. Michael can be reached by email at michael@michaelcoyle,ca  For more information and tips on employment and labour law issues, visit his website at www.michaelcoyle.ca

 

©Michael V. Coyle, 2012