Canadian Employment Law Today

Canadian HR Reporter, 2020 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases Stitch Counts had a policy that employees were responsible for finding their own replace- ment if they wanted to change a shift or couldn't make it into work. In addition, any shift chang- es had to be approved by the manager. The shift schedule was posted at the beginning of each month and Trowsdale usually worked one weekday evening shift plus one weekend day, but Stitch Counts hired her to be available for any shift. In early October 2018, Trowsdale switched shifts with co-workers so she could take a week off. The store manager contacted her and re - minded her that she wasn't authorized to make unilateral changes without her approval. Trows- dale claimed she wasn't aware of this — the ap- proval requirement was in the 2017/2018 store manual, but it had been removed for the fol- lowing year. Accommodation request Around the same time, Trowsdale's back pain worsened. She started visiting a physiotherapist, but things didn't improve. On Nov. 2, she re- quested a reduction in her shifts so she could get "her back issues sorted out." She said she would find someone to cover her shifts or work them herself for the rest of November, but she wouldn't be able to work more than one shift per week in December. The manager replied that one shift per week in December might not work, as it was a busy month for business and there were only four employees in total — two of which were stu - dents who could only work evenings and weekends — and usually two or three worked at the story on any given day and Trowsdale had been hired to work any shifts as necessary, including at least one weekday evening shift and one weekend day per week. The manager said she would get back to Trowsdale "in a day or two." Three days later, the manager noticed that Trowsdale had no shifts scheduled for that week. She needed someone to work that Saturday and asked Trowsdale if she was available. Trowsdale responded that she was "dealing with a family situation" and would be out of town that week. She said she had covered her shifts so the store "would not be in a bind during this time." The manager explained that she had recently started splitting Saturday shifts and if she had known about Trowsdale's absence, she would have distributed the shifts more evenly. Trows - dale said her absence was on short notice and had been unaware of the scheduling change. She also apologized and said she "physically cannot handle working multiple days a week at this time. I understand if you must let me go due to my availability." She expressed hope that she could still work at Lazy One despite her "injury which limits my abilities." Termination for health reasons On Nov. 6, the store manager emailed Trows - dale to say that with the needs of the store for the upcoming holiday season, having Trows- dale work only one day per week was "not going to be beneficial to me or the store." As a result, she terminated Trowsdale's employment and sent her a Record of Employment (ROE) stating that the reason was that she had quit for health reasons. Stitch Counts hired some more staff, but some worked few shifts and some of Trows - dale's shifts went to existing employees. Trowsdale asked the manager to change the reason on the ROE, but the manager replied that "in all fairness the reason you were termi- nated is because of health reasons and being able to fulfill the requirements as per what you were hired for which was open availability." Trowsdale filed a human rights complaint al- leging discrimination based on disability in her employment and arguing that she was termi- nated because she requested accommodation for her back injury. The tribunal found that the store manager took the position that having "open availabil- ity" — for which Trowsdale was hired and the manager considered to be an essential require- ment of the job — included the ability to work more than one shift per week. However, Trows- dale indicated that she was flexible of which shift she worked during the week and at no point before her request did the company indi- cate that being able to work more than one shift per week was a requirement due to the nature of the business, said the tribunal. The tribunal also found that there was no evi- dence that Stitch Counts took any steps to deter- mine whether its business needs could be met short of undue hardship while keeping Trows- dale employed for one shift per week, noting that existing staff took over some of her shifts. "There is no indication [the store manager] asked whether other staff were interested in tak- ing on additional shifts," said the tribunal, add- ing that because some new staff only worked a few shifts while existing employees took over some of Trowsdale's shifts, it might have been less hardship to accommodate Trowsdale with one shift per week. After Stitch Counts raised the issue of unap - proved shift changes at the hearing, the tribunal added that Trowsdale had indicated she wasn't aware of the policy and had explained that she didn't intend to leave the store in a bind and would follow the policy going forward. This issue didn't justify dismissal and the manager didn't mention it to Trowsdale as a cause for dis - missal, said the tribunal. The tribunal determined that Trowsdale's disability was a factor in the termination of her employment, contrary to the Ontario Human Rights Code. Stitch Count was ordered to pay Trowsdale $15,000 in damages for injury to her dignity, feelings and self-respect. The company was also required to implement a human rights policy consistent with the Ontario Human Rights Commission's Guidelines on Develop - ing Human Rights Policies and Procedures and have its store managers complete human rights training. For more information, see: • Trowsdale v. Stitch Counts Embroidery Ltd dba Lazy One, 2020 HRTO 13 (Ont. Human Rights Trib.). « from ONTARIO WORKER'S on page 1 Employee was hired to be available for any shifts as needed CREDIT: NMESSANA iSTOCK The employer dismissed the worker and sent her a Record of Employment stating that she had quit for health reasons.

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