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Family First: Protection of Short Term Code Related Absences

The Ontario Human Rights Tribunal has recognized that it is necessary to accommodate employees who have family members that require long term care.

Yet, what happens when there is a spur of the moment emergency?

When it comes to the Ontario Human Rights Code (the “Code”), there is no discrepancy between long term and short term absences.

In the recent decision of Miraka v. A.C.D Wholesale Meats Ltd., 2016 HRTO 41, the Human Right Tribunal of Ontario awarded the applicant damages for discrimination on the basis of family status and disability after he was terminated for an absence of three consecutive days.

The Facts

Mr. Miraka worked for a month with A.C.D Wholesale Meats Ltd. (“A.C.D Wholesale Meats”) as a truck driver.

On June 11th 2012, Mr. Miraka received a call from his wife asking him to stay at home the following day to watch the children as she had fallen ill. Mr. Miraka requested a day off from his employer and was granted permission to have June 12th off.  On June 13th, Miraka’s wife’s illness did not improve. Mr. Miraka called his employer to relay that he would not be coming to work as he needed to remain home to care for his children, because his wife was still ill. The following day, Mr. Miraka went into work as usual, but during his shift he had felt a sharp pain in his side and was unable to continue working. This was later diagnosed as a hernia. After notifying his employer that he would need to leave work, he was terminated.

 The Decision

The HRTO found that Mr. Miraka had been discriminated against on the grounds of family status and disability and that his absence due to the same had been a significant contributing factor to his dismissal.

The Tribunal looked to Canada (Attorney General) v. Johnstone, 2014 FCA 110 to determine if A.C.D Wholesale Meats’ actions established family status discrimination. In Johnstone, it was stated that, “legal obligations that engage a parent’s legal responsibility to a child” include family status and parental obligations. It was concluded that if Mr. Miraka did not leave work in order to take care of his children as his wife was ill, he would be breaching his legal obligations as a parent.

 The Respondent asserted that Mr. Miraka had failed to make reasonable efforts to find alternative childcare. The Tribunal disagreed and found that since this was an “infrequent, sporadic and unplanned” event, it is not reasonable to expect him to have someone on call nor attempt to hire a stranger from “Craigslist” or “Kijiji” as that would be inconsistent with his parental obligations to his children.

For the third day of Mr. Miraka’s absence, the courts found that Mr. Miraka had a code-related need to be absent from work and was discriminated against based on this.

Mr. Miraka was awarded $10,000 for injury to dignity, feelings and self-respect.

There will be times that an employee will require a brief absence for unplanned family needs, something that employers and employees must recognize. Employees are now held to a lower standard in order to seek accommodations from their employer and are protected by the Code when struggling to balance their personal obligations to their work related ones. It is important to ensure your rights are protected. Contact Monkhouse Law today for a free consultation and information regarding your situation. 


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