Employer Did Not Discriminate or Constructively Dismiss When Employee Required to Comply with Start Time
A recent decision of the Ontario Superior Court of Justice (Divisional Court) considered whether an employer could insist that an employee attend work at her regular start time after she returned from a statutory leave where the employer had previously shown flexibility on when the employee arrived at work.
In Peternel v. Custom Granite & Marble Ltd., the Divisional Court was hearing an appeal of a trial judge's decision dismissing the plaintiff's claim. The plaintiff had been employed by Custom Granite & Marble for over three years. Following a pregnancy and parental leave with respect to the birth of the plaintiff's third child, she sought to return to work, albeit with a much later start time of 10:00 am. However, the employer took the position that, due to restructuring in its operation, it would need to insist on her arriving at work at the original start time for her position, 8:30 am. The trial judge heard evidence that the employer had been quite flexible with the plaintiff previously, but was unprepared to comply with the plaintiff's demand that she not start work before 10 am once she returned, due to challenges with obtaining child care for her 3 children. The trial judge concluded that it had always been a term of the plaintiff's employment that she was to work 8:30 - 4:30 daily, and that it was the plaintiff who was trying to unilaterally alter this fundamental term of her contract, not the employer. The trial judge also concluded that there was no violation of the family status protections in the Human Rights Code, as the employer had not changed any terms of the plaintiff's employment - it was merely requesting that she comply with the start and end times for her position. The fact that the employer had shown flexibility in the past did not amount to a change to the terms of her employment contract.
In dismissing the appeal, the Divisional Court stated (at paras. 33 and 34):
... The difficulty in this appeal seems to arise from Ms. Peternel’s insistence that Sheard J. misapprehended the evidence regarding Ms. Peternel’s start time. Ms. Peternel insists that the start time was within her complete discretion, such that she could insist on coming in whenever she felt it was appropriate. There was no evidence at trial that specifically demonstrated how Ms. Peternel’s right to care for her children was adversely impacted by Custom’s requirement that she start at 8:30 a.m. each morning. The evidence was the children had to be at the bus for 8:50 am. Ms. Peternel had after school care. There was no indication of how an 8:30 am start time interfered with Ms. Peternel’s ability to provide care both pre and post school for her children. There was a good deal of evidence about how the parties considered alternative start times, for example at 10 a.m., as discussed at para. 65 of the judgment, but overall, Ms. Peternel could not point to evidence that showed how she had suffered adverse treatment and that her family status was a factor in that adverse treatment. Sheard J. made a number of important factual findings in regard to the child care issue, most of which revolved around the trial judge’s assessment that Ms. Peternel had not provided sufficient information to assist Custom in making a determination about how to structure any accommodation.
In my view, the key to all of this was Sheard J.’s finding that, before Ms. Peternel had gone on maternity leave, Custom expected her to be at work for 8:30 a.m. It granted significant leniency and cooperation to her in light of her two pregnancies and a subsequent miscarriage. Sheard J. did not accept that Ms. Peternel could transform the employer’s supportive leniency into a contractual obligation that could be held against it. When Ms. Peternel sought to come back from maternity leave, the start time became an issue. Sheard J., at paras. 47-61, goes through the evidence adduced at trial relating to the Code and comes to a factual and legal conclusion about whether or not Ms. Peternel made out a prima facie case for discrimination. I find no mistake in the trial judge’s legal analysis, nor do I find any palpable and overriding error in her factual findings. I would therefore give no basis to this ground of appeal.
In the Peternel decision, the Courts have acknowledged an employer's right to demand that an employee meet the essential requirements of a job, despite the leave provisions of the Employment Standards Act, 2000 or the Human Rights Code's duty to accommodate which might seem to freeze an employee's terms and conditions of employment. Where the employer can point to evidence that the employee was always expected to attend work during certain hours, showing "leniency" on occasion does not fundamentally alter the expectations for the role. Where an employer does demonstrate this type of flexibility, it is important to also remind employees of the actual terms of their employment agreement, and to let them know that any occasional waiver of the rules is temporary and may be revisited. For employees, the message is also clear - if you believe that your parental obligations are being infringed by the terms of your employment, you'd best have good evidence of how the hours of work interfere with your familial duties and the efforts you have made to find alternatives that address your needs. Demands to be accommodated, without evidence of the disadvantage suffered, will fall on deaf ears.
Is your organization struggling with a challenging family status issue? Need guidance on how to accommodate employee needs? Contact [email protected] for expert advice.
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Operating as Ceaser Work Counsel since early 2014, Lance Ceaser is a 16+ year management-side labour and employment lawyer operating from London, Ontario, where he resides with his lovely spouse, a dog and 2 cats. Lance has provided timely, cost-effective advice to organizations of all sizes in virtually every sector of industry and the public sector throughout his career. He is currently a Professor of Employment Law at Fanshawe College.