employmentlawtoday.com
Jul 30, 2019

Dismissal following lengthy unauthorized absence not discriminatory: Tribunal

Worker was 'entrenched' in her belief she was discriminated against but didn't participate in accommodation efforts
By Giovanna Di Sauro

In Joseph v. Tecumseh Community Development Corporation, the Ontario Human Rights Tribunal dismissed an application made by an employee whose employment was terminated for unauthorized absenteeism and insubordination. Although the worker was specifically asked to provide medical documentation substantiating her absence or return to work, she failed to comply with these directives. The applicant asserted the termination of her employment amounted to discrimination on the basis of family status. However, the tribunal ultimately found the worker failed to provide any medical evidence to substantiate this claim.

The worker in Joseph worked as a Business Development Officer for the respondent employer. Soon after he was required to report to a new General Manager, their relationship began to deteriorate. Over the subsequent months, the applicant raised concerns with respect to scent sensitivity, but did not provide the employer with evidence to substantiate her claim.

Some time later, the worker requested a medical leave of absence indicating she had been caring for her son, who had experienced a serious mental health crisis. The employer granted the leave, which was later extended at the worker's request. In spite of this, the worker contacted the employer’s board president and raised human rights concerns regarding her alleged scent sensitivity and disclosing her son’s circumstances. The following month, the worker requested an extension of her leave of absence; however, no supporting medical documentation was provided.

The employer took the position the leave was unauthorized, and that unless the worker provided adequate medical documentation to support her request, the employer would consider her to have abandoned her position. While the worker submitted a letter from a psychiatrist regarding her son’s condition, she failed to provide adequate medical documentation substantiating her own request for a medical leave. The worker's employment was ultimately terminated for cause.

The tribunal’s decision

Before the tribunal, the worker argued she had been discriminated against on the basis of disability, family status, and had experienced reprisal. However, the tribunal dismissed all allegations, including the allegations of reprisal.

The tribunal pointedly noted that the worker was “entrenched” in her position about her rights under the Ontario Human Rights Code, and misguidedly felt she did not have to report to her manager or comply with her employer’s directives. In essence, the tribunal found the worker failed to appreciate that accommodation is a two-way process. Helpfully, the tribunal reiterated that employees are required to co-operate with their employers’ efforts to accommodate. In this case, the worker’s failure to comply with her employer’s reasonable request for information to substantiate her leave was a justified basis for her dismissal.

Check the box

This decision provides helpful guidance regarding what the tribunal may consider reasonable efforts to accommodate employees requesting a leave for medical or family status reasons. Of particular relevance to employers is that the tribunal determined that the worker could not rely on after-the-fact evidence about her family status responsibilities and her health situation in order to establish discrimination under the code. Rather, the reasonableness of an employer’s accommodation efforts will be based on the evidence available to the employer at the time the decision was made.

For more information see:

  • Joseph v. Tecumseh Community Development Corporation, 2019 HRTO 635 (Ont. Human Rights Trib.).

Giovanna Di Sauro is an associate with Filion Wakely Thorup Angeletti LLP in Toronto, providing legal and strategic advice to employers in all areas of employment law. She can be reached at (416) 408-5513 or gdisauro@filion.on.ca.