Our regular readers may recall our previous post regarding the case of Attorney General of Canada v. Johnstone, in which the Federal Court of Appeal established a new test for determining whether an employer has discriminated against an employee on the basis of “family status.” In the recently-released Partridge v. Botony Dental Corporation, 2015 ONSC 343, the Ontario Superior Court adopted the Johnstone test in the context of Ontario’s Human Rights Code and awarded the plaintiff $20,000 in human rights damages.
In July 2011, Ms. Partridge was set to return from her second maternity leave to her job as an office manager at Botony Dental Corporation, where she had worked as a dental hygienist for three years before her promotion. Instead, she was informed that the office manager position was no longer available and that she would be returned to a hygienist position. Unfortunately for Ms. Partridge, the hygienist position did not guarantee a minimum number of hours per week, provided less pay than her previous position, and could require her to work until 8:00 PM on weekdays and on Saturdays.
Ms. Partridge requested that she be given hours that were closer to the 9:00 AM – 5:00 PM schedule she had before her maternity leave to accommodate her child care needs. In response, her supervisor scheduled her until 6:00 PM for three nights out of the week and then terminated her for cause.
Ms. Partridge’s employer provided a number of reasons for firing her, including that she demanded that her office hours be changed, harassed coworkers and management, displayed insubordination, solicited Botony’s employees or patients for the purpose of establishing a competing business, and removed one or two day sheets from the office, which contained confidential patient information.
The Court found that Botony had not proven most of their allegations and that the evidence that was provided could not justify dismissing Ms. Partridge. For instance, although Ms. Partridge may have had an unfavourable attitude at work when she returned from maternity leave, the Court found that her demeanour was understandable, given her recent demotion and her concerns about job security and pay. Similarly, although Ms. Partridge had thought about opening up her own business, she never went beyond the initial planning stages and never solicited any employees or patients. Finally, although Ms. Partridge had taken day sheets out of the office, she had never shared the information and had only kept them as proof of her own reduced hours that week.
Having found that Ms. Partridge was wrongfully dismissed, the Court awarded her approximately $42,500 in lieu of a twelve-month notice period.
The Johnstone Test
In assessing whether Ms. Partridge demanded that her office hours be changed, the Court concluded that it was Ms. Partridge’s manager who unilaterally made the decision to demote her and modify her hours. Furthermore, the Court determined that, when Ms. Partridge insisted that she be given a work schedule that was more similar to her pre-maternity leave schedule, the manager’s response – giving Ms. Partridge additional shifts that conflicted with her child care obligations – amounted to a reprisal.
For this reason, the Court held that Botony had breached several of its statutory obligations as an employer. First, it failed to reinstate Ms. Partridge to her previous or a comparable position upon her return. Second, it sought to penalize Ms. Partridge for seeking to exercise her right to reinstatement.
Given that Botony breached its obligations, the Court considered what an appropriate remedy might be under the Human Rights Code, which prohibits employment-related discrimination on the basis of “family status.” The Court adopted the two-step Johnstone test, which requires that the complainant demonstrate a prima facie case of discrimination and then requires the employer to prove that the rule, policy or practice at issue is a bona fide occupational requirement.
Ms. Partridge was able to show that a prima facie case of discrimination existed. She was required to care for her children and, although she had tried to make arrangements so that should could work until 6:00 PM, her new schedule would either result in significant daycare costs or heavy reliance on her family members, neighbours, and self-employed husband, which could lead to a number of potential “glitches” on any given day.
For its part, Botony failed to prove that the requirement to work the hours given to Ms. Partridge was a bona fide occupational requirement. There did not appear to be a reason why Ms. Partridge could not start her day earlier than 10:00 AM, particularly since she had been starting at 9:00 AM before her maternity leave. Furthermore, the fact that the schedule was reprisal-based meant that it was not adopted in good faith. Finally, there was no evidence that the practice was necessary to accomplish a legitimate work-related purpose. The manager had previously offered Ms. Partridge different hours, only to change them when she returned to work, without providing an explanation as to why that was necessary.
The Court determined that Ms. Partridge was entitled to $20,000 as compensation for the violation of her human rights, such that she received over $62,500 in total from her employer.
Although the Johnstone test has been considered and applied in Ontario by the Human Rights Tribunal, the Partridge case appears to be the first instance in which an Ontario court has provided its approval of the test. Moving forward, employers operating in Ontario should expect that courts and administrative decision-makers will apply the Johnstone test where an employee claims that he or she has been discriminated against on the basis of “family status.” Employers will be required to prove that any rule or practice that impacts an employee’s child care obligations in a non-trivial way is connected and necessary to the performance of the employee’s job and that it was adopted for that reason. At the same time, employers can legitimately expect that employees will make reasonable efforts to find alternative solutions before asking for accommodations at work.
In addition, the Partridge case appears to be one of the few instances in which a court has ordered a party to pay compensation for breaching the Human Rights Code. This case may signal that courts are becoming increasingly more comfortable awarding compensation for breaches of the Human Rights Code where the cases are brought before them, rather than a tribunal.