The Divisional Court, in Peternel v Custom Granite & Marble Ltd., 2019 ONSC 5064 (CanLII) affirmed a Trial Judge’s decision to dismiss an employee’s claim for breach of the human rights code and constructive dismissal by her employer when the employer refused to accommodate the employee’s late start time due to child care needs.
The Appellant, Peternel, was an employee of the respondent, Custom Granite. The appellant’s work was from 8.30 am to 4.30 pm based on an unwritten contract and though the Court found as a fact that there was flexibility in that start time.
After taking parental leave, the Appellant was informed by her employer that she needed to begin work at 8.30 am with no flexibility. The employee told her employer that she could never start her workday prior to 10:00 am due to childcare needs. The employee did not return to the workplace after her parental leave and argued that requiring her to start at 8:30 am was a breach by her employer of the human rights legislation and a wrongful dismissal as she should have been reinstated to her previous position.
The trial judge found that that “despite that Custom had previously granted the plaintiff latitude in the time at which she arrived for work prior to her maternity leave, the evidence leads me to conclude that it always remained a term of her employment that the plaintiff be able to attend work close to 8:30 a.m., if asked to do so by Card, or if required to attend a meeting.”
The employee appealed stating that the starting time is a fundamental term of her employment. The Divisional Court found that the Trial Judge did not err when he “found that it was Ms. Peternel who was unilaterally attempting to impose a change by saying that in January 2015 she would not be able to start work at any time before 10 a.m.”
While the lack of flexibility was a change to the employee’s employment contract, it seems the employee’s request for a permanent change to 10:00 am start time was the larger issue with the employee’s claim. While the Court found that the employer’s change to have a firm 8:30 am start time was bonafide, one could foresee the analysis may have been different if it was merely the flexibility of start time that prevented the employee from returning to the job as opposed to the employee requiring a permanent change. The Court also made note of the employee’s lack of disclosure surrounding her need for accommodation which impacted the employer’s ability to respond to the request.
As childcare needs are particularly impacted during this public health crisis, timely legal advice and appropriate accommodation will be of particular concern. Monkhouse Law helps employees and employers navigate the workplace. Contact us today for a free 30 minute phone consultation.
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