A recent decision of the Human Rights Tribunal of Ontario (the “HRTO”) has further defined the scope of the test for “family status” discrimination. Employees may not be required to take measures to find alternative arrangements for infrequent, sporadic or unexpected family needs, before seeking protection under the Human Rights Code (the “Code”).
In Miraka v. A.C.D. Wholesale Meats Ltd., 2016 HRTO 41, Mr. Miraka, an employee who had worked with the employer for one month, was awarded $10,000 for injury to his dignity, feelings and self-respect. Mr. Miraka was dismissed for being absent from work for three consecutive days.
On June 11th, 2012, Mr. Miraka received permission from the employer’s office manager to stay home on the following day to care for his children, as his wife was ill. On June 13th, Mr. Miraka failed to show up for the start of his shift, calling in late to say that his wife was still ill and he would not be coming in. On June 14th, Mr. Miraka punched in on time, but left shortly thereafter because of a sharp pain in his back, which was later determined to be a hernia. Upon overhearing this, the employer’s owner summarily dismissed Mr. Miraka.
Mr. Miraka alleged that the termination of his employment was discriminatory because it was based on his family status and/or disability. The HRTO agreed.
On the issue of family status, the employer argued, citing Johnstone, that Mr. Miraka was required to make reasonable efforts to find alternative childcare arrangements for June 12th and 13th. Because Mr. Miraka had not tried to find someone else to care for his children, the employer argued that he should not receive protection under the Code.
The HRTO disagreed that Mr. Miraka was required to try to make alternative arrangements, because the situation only involved “an infrequent, sporadic or unexpected need to miss work”, rather than a permanent or long-term childcare issue. While seeking assistance from close family members may be a reasonable expectation, Mr. Miraka could not be expected to have a babysitter “on call” or attempt to hire a stranger from “Craigslist” or “Kijiji” to look after his children, before falling within the Code’s protection. Additionally, because the employer had given Mr. Miraka permission to be away from work on June 12th to care for his children, it could not use his absence on that date as a reason for dismissal.
After the Miraka decision, employers should be wary of taking disciplinary action against employees for responding to infrequent, sporadic or unplanned family needs. While employees are expected to act reasonably in the face of childcare or eldercare issues, the nature and duration of the conflict, as well as the employee’s personal circumstances, are important factors that will affect what is considered “reasonable”. An employee may still be protected by the Code, even where he or she does not take any tangible steps to balance family and employer obligations, and instead prioritizes his or her family’s needs.