A recent Ontario Superior Court decision shows the courts are still grappling with how best to determine what classifies as workplace discrimination on the basis of family status, say lawyers who represent employers and employees.
A recent Ontario Superior Court decision shows the courts are still grappling with how best to determine what classifies as workplace discrimination on the basis of family status, say lawyers who represent employers and employees.
In June, Justice Elizabeth Sheard dismissed all complaints in Peternel v. Custom Granite & Marble Ltd. Tina Peternel alleged her former employer, Custom Granite & Marble Ltd., a small company that installs granite for countertops, failed to accommodate her child-care needs when she was told she had to begin work at 8:30 a.m. when she returned from maternity leave in January 2015, even though she did not have morning child care available for two of her children.
Sheard acknowledged “having daycare in place was essential to the plaintiff’s ability to work outside of the home.”
However, Peternel “failed to provide Custom with key information about her need for accommodation,” the decision says.
Employers in Ontario are not allowed to discriminate because of an employee’s family status. The Ontario Human Rights Code defines family status as “the status of being in a parent and child relationship.”
“The bottom line with family status accommodation is that employers have to accommodate the legitimate needs and obligations by parents toward their children, and that includes child-care obligations,” says Lorenzo Lisi, a partner at Aird & Berlis LLP in Toronto, who has written about family status accommodation in the workplace.
Sheard dismissed all charges against the company and, in August, she ordered Peternel to pay the company $54,108.36.
Peternel is appealing both decisions, an appeal filed in August says. Marc Munro, an associate at Graydon Sheppard PC in Hamilton, Ont., who represented Peternel, and K. C. Wysynski, an associate at Simpson Wigle Law LLP in Hamilton, who represented Custom, declined to comment on the case for Law Times.
Peternel began working for Custom in 2010. In August 2011, she became a scheduler for the company, the decision says. The ability to respond to early-morning calls and attend morning meetings was important for the position, the decision says.
Because Peternel often couldn’t come into Custom’s office until later in the morning, the company gave her a cellphone she used to make work calls from her home.
The decision describes how Peternel told her employer she couldn’t come into work earlier because she needed to take her children to the school bus, but her mother, who lived with her, was often available to watch the children.
Changes had occurred at Custom while Peternel was on maternity leave that meant she needed to be in the office at 8:30 a.m. Custom told Peternel about this change at a meeting in January 2015 to arrange her return to work. Peternel then said she could not be in the office at that time, the decision says, because her mother no longer lived with her, and she still needed to find daycare for two of her children before school.
Peternel did not return to work at Custom. The decision “highlights the importance of the contextual analysis with respect to the request for accommodation,” says Lisi.
“There’s an obligation on complainants, people who seek the protection of the family status provision, to see that they’re also participating in their own accommodation,” he says.
The decision describes how Peternel said lack of child care put her in “a Catch-22 situation: without a firm date on which she was to resume working at Custom, she did not wish to start paying for daycare; she also knew that unless she paid for daycare, she would lose her spots, making it impossible for her to resume her employment.”
Custom offered her an alternative position, at a comparable salary, that would allow her to start work at 10 a.m., the decision says.
“(Peternel) did not respond at all to Custom’s option ‘B,’” Sheard wrote.
The decision shows how “the court is still grappling, to some degree, with how to analyze and apply the duty to accommodate family status in Ontario,” says Heather Ann McConnell, a partner at Goldblatt Partners LLP in Toronto.
McConnell says the question of what the right test is “hasn’t been fully settled by the court in this case.”
“The courts and tribunals are batting around the tests right now,” says Natalie MacDonald, founder of MacDonald & Associates, an employment law firm in Toronto, who says she gets inquiries about family status accommodation every day.
“Courts place a great emphasis on the issue of whether or not the employee has worked with the employer in the accommodation process,” she says.
