EMPLOYMENT LAW UPDATE - TWO RECENT DECISIONS OF THE ONTARIO HUMAN RIGHTS COMMISSION PROVIDE COMFORT FOR EMPLOYERS
BY EARL ALTMAN

Two recent decisions by adjudicators at case conferences under the Human Rights Code provide some comfort for employers faced with complaints by employees under the Act.

In a decision rendered on June 10, 2009, an adjudicator considered a claim for alleged discrimination on the basis of family status, contrary to Sections 5 and 9 of the Code. Section 5 provides that “every person has a right to equal treatment with respect to employment without discrimination because of…family status or disability.” Section 9 prohibits anyone from infringing or doing indirectly anything that infringes a right under that section of the Code.

In this case, the complainant employee was a truck driver employed by Fresh Start Foods. When the complainant took the job, he completed an application for new employees which indicated that there was no time of the day or night during which he could not provide the services for which he was being hired. Approximately six months after commencing work, the complainant was given the opportunity to drive an extra shift commencing at 1:00 a.m. on Saturdays and requiring him to make deliveries in downtown Toronto throughout the night. As a result of this increased workload, the complainant had difficulty meeting his childcare responsibilities, which involved his picking up his son on every second Friday in Niagara Falls and bringing him to Toronto to spend the weekend. The complainant therefore sought permission from his supervisor to take Fridays off to accommodate his childcare responsibilities. The employer denied that this conversation ever took place.

A dispute arose as to whether the complainant was going to attend at his 1:00 a.m. shift. When the complainant indicated he could not do so, he was advised that the shift was important and that the employer needed to know whether the complainant was going to drive the shift. According to the complainant’s evidence, he felt that this was an ultimatum that he either fail to pick up his son, or leave his job. When he failed to respond to this request, he was asked for the truck keys, building key, and fuel card. This he interpreted as a termination of his employment. However, according to the employer’s representative, this conversation never took place; rather, the employer alleged that the complainant resigned his position in order to go pick up his son.

Following his dismissal, the complainant filed a complaint with the Human Rights Commission alleging a failure to accommodate his request for Fridays off, and forcing him to choose between his responsibilities to his son and to his employment. He alleged that this constituted discrimination based on family status. Refusing his request constituted a failure to accommodate, contrary to the Act.

In rejecting the complainant’s claim with respect to accommodation, the tribunal held that he had been vague and confusing in elaborating on his request for accommodation, and in particular why he needed all Fridays off. The adjudicator held that there was no indication that the complainant had advised the employer of the nature of his childcare responsibilities in Niagara Falls. Therefore, in the absence of a clear request for accommodation, the adjudicator held that there was no duty on the employer to accommodate. In addition, the adjudicator held that the complainant did not require an accommodation to meet his child care responsibilities as he could have resolved the difficult by simply declining the extra shift which he had voluntarily assumed. The adjudicator therefore dismissed the complaint.

In a second decision of the Human Rights Commission issued on June 12, 2009, an adjudicator considered the case of a sixty five year old maintenance carpenter employed by the Toronto Transit Commission. The TTC had dismissed the complainant for being intoxicated, which was clearly contrary to the employment policies of the TTC. The complainant alleged that he had, in fact, been terminated based on his age, or race, and that this constituted prohibited discrimination under the Code.

In assessing the credibility of the parties, the adjudicator relied on the fact that the complainant had not registered any complaints with the employer alleging any sort of discrimination or harassment until his employment was terminated. The adjudicator also decided that, where the evidence of the complainant and the representatives of the employer conflicted, he preferred that of the employer. He therefore dismissed the complaint with respect to age discrimination.

The complainant had also raised the question of the duty to accommodate an alleged disability, in this case his cough and cold. While the adjudicator questioned whether a cough and cold could constitute a disability, he found it was not necessary to decide the point. He held that the complaint should be dismissed as the complainant had provided no evidence to base a conclusion that the employer did have a duty to accommodate, or what a reasonable accommodation would have been.

In dismissing the complaint, and upholding the dismissal, the adjudicator held that it was irrelevant whether the employee was intoxicated due to the consumption of alcohol, or impaired due to the medication he was taking. Given the employee’s position, either impairment gave the employer good reason to terminate his employment. The tribunal therefore dismissed the complaint.

If you have any questions regarding the information in this article, please contact Earl Altman, or any of the other lawyers in our office - Garfinkle, Biderman LLP - ealtman@garfinkle.com.

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