Human rights at work: $15,000 damages for “family status” discrimination

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After 27 years working for an architectural firm,  a complainant had expected some flexibility in caring for his elderly mother – he didn’t expect to be terminated.

It was 2007 when the complainant’s mother became ill and over the next two years he spent a considerable amount of time away from the office caring for her, until she eventually went into full-time care.

The complainant claimed he managed his workload and management duties from home. The employer told him he had to be present during core work hours and considered his continued absences to be just cause for termination. The firm also claimed he never formally sought accommodation.

The Tribunal found the employer failed to demonstrate its attendance requirements were strictly necessary and it had failed in its duty to accommodate his leave requests. Informing the employer of his need for accommodation would have been enough to engage that obligation.

The worker was awarded $15,000 in damages, and the employer was instructed to develop and implement a human rights policy and an accommodation policy.

Elder care issues are likely to arise more often in the future so employers needed to know their rights and obligations, human rights lawyer Donna Seale said.

She also pointed to the tribunal’s statement that most but not all the employee’s absences were due to his mother’s illness and said that if the employer had clear records showing it had “provided appropriate accommodation” for him to care for his mother, it could have argued that family status was not a factor in his termination.

Lessons learned:

  1. Know your obligations. The Human Rights Code is complex and far reaching, but there are numerous online resources and legal experts available to help. The more you know now, the better prepared you will be when the problems arise.
     
  2. Have a clear process for accommodation, which kicks in as soon as a problem is known about rather than waiting for an employee to ask for help.
     
  3. Ensure your policies are up to date and available for staff and managers to access.
     
  4. Keep records of all communication, accommodation efforts and decisions made throughout the process. If employers can prove they took all the right steps then the final decision is more likely to be accepted as justified.

 

              

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