Truck driver Jolando Miraka was absent from work for two days because his wife – who normally provided childcare – was ill and couldn’t look after the couple’s two young children.
On the third day, Miraka returned to work but was fired when he told bosses he would have to leave early due to a mystery pain in his side – the pain was later diagnosed as a hernia and Miraka underwent surgery less than three weeks later.
Employer A.C.D. Wholesale Meats claim Miraka was dismissed for being “an unreliable employee” and failing to call in advance on the second day of his absence but Miraka claims the company discriminated against him on the basis of family status and disability.
The Human Rights Tribunal of Ontario agreed and despite Miraka having a tenure of just one month with the company, he was awarded $10,000 as compensation for injury to dignity, feelings, and self-respect.
“In my view, it would be unreasonable to expect [Miraka] to leave his children at home alone with their mother given that she was not in a position to take care of them,” said adjudicator Sheri Price.
“Had [he] done so, his young children would have been effectively left unsupervised and therefore put at risk of harm,” she added. “Clearly, this would have been inconsistent with [his] substantive obligations as a parent.
Interestingly, adjudicator Price also addressed the employer’s suggestion that Miraka had not attempted to make reasonable alternate arrangements for childcare.
“I am not convinced that the requirement to demonstrate reasonable efforts to make alternative childcare arrangements applies in cases like this, where there is only an infrequent, sporadic or unexpected need to miss work to take care of one’s children,” she said.
“For example, I doubt that a parent who is called away from work to pick up a sick child from school or day care has to prove that he or she first tried to find someone else to care for the child in order to fall within the Code’s protection.”
She also disagreed with A.C.D.’s suggestions that Miraka should have been obliged to hire a caregiver on short notice from “Craiglist” or “Kijiji.”
“Indeed, doing so might have been inconsistent with [Miraka’s] legal obligations to ensure the safety and well-being of his children,” she stressed.
She also agreed that Miraka’s hernia constituted a disability.
As Miraka received WSIB benefits following his hernia injury, the court ruled that he would have been unable to earn an income with A.C.D so the company was saved from paying out lost-wages.
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An employee who was fired for missing two consecutive days of work to care for his children – and then a third because he was suffering from a hernia –has been awarded $10,000 compensation from the Human Rights Tribunal of Ontario.