Sample Accommodation E-Lert

This sample Accommodation E-Lert was posted on June 13, 2019 within the category "Accommodating family status". A one-year subscription to Accommodation E-Lert provides instant access to the latest cases on the duty to accommodate in Canada and their impact on the unionized workplace.


The Human Rights Tribunal of Ontario found that an employer was not required to accommodate an employee on the basis of family status because it was not aware of the employee’s accommodation needs.
 
Legal Citation 
 
Linklater v Essar Steel Algoma Inc, 2019 HRTO 273; Human Rights Tribunal of Ontario (Brian Best), February 14, 2019.
 
Facts
 
Steve Linklater worked for Essar Steel Algoma Inc. 
 
His shift schedule was four days on, four days off, with twelve-hour shifts each day. 
 
In early January 2016, he was injured in a workplace accident, which precluded him from performing any of the jobs on his regular twelve-hour shift for one month. 
 
On January 12, 2016, the employer provided the employee with a temporary position, within his restrictions.  However, this schedule had a five-days-on, two-days-off shift schedule, Monday to Friday (eight-hour shift). 
 
Since Mr. Linklater worked 40 hours every seven days rather than 48 hours every eight days, the employee’s temporary position paid him less money.  He also was ineligible to receive the night-shift premium he would have received working the twelve-hour shift.  
 
Within the human rights realm, he had joint custody, with his former spouse, of their child, and had obtained an access schedule (provided through a court order) structured around his twelve-hour shift.  Working the eight-hour shift conflicted with this custody arrangement. 
 
The employee expressed his objection to the shift change, stating that it was unfair he was being paid less in his temporary position.  He also raised the family status concern about his ability to care for his child.  He asked to be put back on the twelve-hour shift.  The employer refused. 
 
On January 22, 2016, the union sent a message to the employer, expressing the employee’s concerns, including the fact that the eight-hour shift conflicted with his child-care obligations.
 
The employer then met with the employee and agreed he could return to the twelve-hour shift once he had medical clearance to do at least one of the five jobs on the twelve-hour shift rotation. After obtaining clearance, the employee returned to working the twelve-hour shift on February 4, 2016.
 
Mr. Linklater subsequently filed a complaint against his employer with the Human Rights Tribunal of Ontario, alleging discrimination on the basis of family status.
 
Analysis
 
At the hearing, Mr. Linklater argued that the employer failed to accommodate his child custody obligations during the time of his injury, which amounted to discrimination on the basis of family status.  He also argued that the only accommodation that would work for him was being put back on the twelve-hour shift, as that is what the custody order was based upon.
 
In reply, the employer stated that it was unaware that there was any imminent conflict with the applicant's child-care schedule.  It argued that, had the employee informed the employer of a conflict between the eight-hour shift and his custody arrangement, it would have made every effort to address it. 
 
Tribunal Vice-Chair, Bruce Best, accepted that the employee suffered an adverse impact as a result of the shift change, as he lost time to spend with his daughter and was forced to make alternate arrangements. 
 
At para. 37, he laid out the prevailing test in family status cases respecting the requirement for an employee or a union to inform an employer of the need for an accommodation:
 
In order for an employer to engage in the accommodation process, it has to be aware that accommodation is needed — the duty to accommodate is for needs that are known or ought to be known. The duty to accommodate is a co-operative and collaborative process. See…Daykin v. Ford Motor Company of Canada, 2014 HRTO 319 (CanLII) (“Daykin”), at paragraph 32, where the Tribunal stated:
 
At the outset I note that jurisprudence regarding the duty to accommodate clearly establishes that all parties to the accommodation process have obligations…The duty to accommodate is a cooperative duty and requires the applicant, who is seeking accommodation, to provide sufficient information to allow the respondents to understand the nature of the disability. The duty to accommodate would require, at the least, the party seeking accommodation to act in a reasonable and cooperative manner.     [Emphasis added]
 
The vice-chair then articulated the need for an employee to communicate her or his requirement for an accommodation.  He also pointed out that there may be circumstances where an employer should have been aware of the need for an accommodation, even if it had not been specifically requested (such as in cases involving a mental illness):
 
An individual seeking an accommodation, in general, has the responsibility to communicate the need. It is true that in some cases a respondent may have a duty to inquire even where there has not been a specific accommodation request in situations where the respondent should have been aware that an accommodation may be required from the circumstances…Such situations, however, have primarily arisen where the reason no accommodation was explicitly requested was related to the applicant’s disability.    [Emphasis added]
 
Until the union informed the employer on 22 January that a child-care custody issue was involved, the employer had no inkling of the need for an accommodation.  Once it was informed of the need, it acted promptly:
 
There is no such issue in the present case. There was no evidence of any circumstances that would have led the respondent to have anticipated or to have inferred that the change in shift might conflict with the applicant’s child custody arrangements. As noted, until Friday, January 22, 2016, there was no evidence that the respondent was aware that the applicant had any child-care obligations at all that could potentially trigger a duty to accommodate.    [Emphasis added]
 
Accordingly, the employer was not required to accommodate the employee due to his child-care obligations.  Vice-Chair Best found that, if the employer was aware of the conflict, it could have accommodated the employee in ways other rather than putting the employee back on the twelve-hour shift.
 
In conclusion, the vice-chair found that the employer had not breached the Ontario Human Rights Code in its actions.  The complaint was dismissed:
 
[the employer] took appropriate actions based on the information it had, and when advised that there were issues which required accommodation, it took further steps to address the applicant’s concern, which resulted in the applicant returning to his preferred shift. 
 
Implications for Unions
 
This case demonstrates that, in general, an employee seeking an accommodation has the responsibility to communicate his or her needs to the employer.  The duty to accommodate is a co-operative and collaborative process.  In this case, the employer could not accommodate a need that was not known.  Furthermore, Vice-Chair Best could not conclude, that had the employer been aware of the conflict, it would not have taken steps to address it.  Thus, because of the lack of communication stemming from the employee, the employer was not required to accommodate the employee’s child-care obligations.
 
Implications for Employers
 
As stated by the vice-chair: “the duty to accommodate is for needs that are known or ought to be known.”  In order for an employer to engage in the accommodation process, it has to be aware that accommodation is needed.  In this case, the employer was not required to accommodate the employee because it had insufficient information to understand the nature of the employee’s disability.  If a disability is not known to the employer, the duty to accommodate is not triggered. However, employers should be cautious about situations where they ought to know that an employee has a disability.  In such situations, the employer’s duty to accommodate is triggered.