A recent decision from the Human Rights Tribunal of Ontario (“HRTO” or the “Tribunal”), Leason v ADAMANDA INC. o/a Dairy Queen Grill and Chill, Huntsville [Leason], highlights the complexities that arise when family ties intersect with professional responsibilities. The decision also makes clear that the accommodation process—whether involving family or not—requires the employee’s cooperation, collaboration, and engagement.
Background
The employee worked intermittently at the employer’s ice cream and fast-food restaurant from 2015 to 2018, where her manager happened to be her first cousin.
In April 2017, the employee suffered a concussion at work, leading to a one-week medical leave. Upon returning, she fell ill during her shift, left early, and failed to report her subsequent absences, resulting in her removal from the work schedule due to uncertainty about her return-to-work date.
In December 2017, at the employer’s request, the employee returned to work and continued working until March 1, 2018, when she requested time off for a doctor’s appointment. Despite the employer’s approval, she did not return to work and informed the employer, “I do not plan on coming back at all…”.
The employee subsequently filed an application with the HRTO, alleging discrimination on the basis of disability and reprisal. During the hearing, she testified that she had been diagnosed with depression in 2008.
HRTO Decision
The HRTO assessed the following issues with respect to the allegations:
i) whether the employer discriminated against the employee on the basis of disability;
ii) whether the employer failed to accommodate the employee; and
iii) whether the employer reprised against the employee. The Tribunal ultimately dismissed the employee’s allegations of discrimination and reprisal.
The Tribunal accepted that the employee met the definition of “disability” under the Ontario Human Rights Code [Code]. However, it found that the employee neither requested accommodation nor engaged in the accommodation process. The Tribunal noted that the duty to accommodate is triggered when an employer is informed of an employee’s Code-related needs and how those needs impact the employee’s ability to work. In this application, the Tribunal found no evidence that the employee requested accommodation or otherwise communicated her need for it to the employer at any point. The Tribunal held that, given the employer’s limited knowledge, it would have been inappropriate for the employer to assume the employee required accommodation without a specific request and supporting documentation. Nevertheless, the Tribunal found that the employer had accommodated the employee by giving her time off.
Regarding the employee’s allegation of reprisal, the Tribunal found that she failed to establish a connection between her attempts to enforce her rights under the Code and any action or threat of action against her. The Tribunal noted that the employee neither formally requested accommodation nor provided a doctor’s note to justify her absences from work. Ultimately, there was no direct evidence that any of the employer’s actions were taken with the intent of retaliating against the employee for attempting to enforce her rights under the Code.
Additionally, the Tribunal addressed the employee’s allegation that she was subjected to reprisal by being harassed via text messages exchanged with her cousin, who also served as her manager. The Tribunal found that the frankness of the text message exchanges “can only be described as bickering among family members” rather than creating a poisoned work environment, as the text messages were unrelated to work and were exchanged outside of work.
Takeaways for Employers
The HRTO’s decision in Leason is an example of the duties that fall on both the employer and employee during an accommodation matter, and the possibility of complicating factors where perceived conflicts of interest may exist. Employers should note the following:
- The duty to accommodate requires cooperation from both the employer and the employee: Where an employer is informed about an employee’s medical condition or other Code-related condition and its impact on their ability to perform work, the employer should ensure that it complies with its legal accommodation obligations. Employees are also required to engage in the accommodation process and provide relevant documentation to support their request for accommodation.
- Employers may have a duty to inquire into an employee’s Code-related needs: Even if an employee does not directly communicate their Code-related needs to their employer, under certain circumstances, the employer may have a duty to inquire into the employee’s Code-related needs. Taking this step will help to mitigate any liability that may arise if the employee makes a claim of discrimination against the employer down the line.
- The nature of relationships between employees may create heightened risks around respectful communication and behaviour: Although the employer in Leason was not found to be liable for the text messages exchanged between the manager and employee, employers should be mindful of possible circumstances where the boundaries around personal and professional communications may be blurred. Where there are certain relationships within the workplace that may heighten the risk of blurred boundaries with respect to communications, employers should ensure that these circumstances are addressed in its policies, and where necessary, to engage in its progressive discipline process.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.
