Canadian HR Reporter

CANADIAN HR REPORTER August 8, 2016 NEWS 17 said he felt a sharp pain in his side after picking up a box. He left work and was diagnosed with a hernia but Miraka's employment was ter- minated nonetheless — leading to the discrimination complaint. e evidence in the case estab- lished that Miraka was unable to work for two days because of family status and one day because of a disability, said adjudicator Sheri Price. And the absences were at least a significant part of the reason A.C.D. decided to terminate his employment. Ac- cordingly, there was discrimina- tion, she said. "The applicant had to miss work on June 12 and 13 because of substantive obligations that engaged his legal responsibili- ties as a parent to ensure that his young children were safe and se- cure. Accordingly, I find that the applicant had a (Human Rights) Code-protected need to be ab- sent from work and take care of his children." In the end, A.C.D. was ordered to pay Miraka $10,000 to com- pensate for injury to his dignity, feelings and self-respect. Manage- ment was also ordered to complete online training on human rights. e ruling is the latest from the HRTO affirming that employers have a duty to accommodate em- ployees who want to take time off to tend to their children's needs, said Sean Bawden, a partner at Kelly Santini in Ottawa. "Employers need to be aware of that, not only because of children but I think, realistically, we're go- ing to see an expansion of people with respect to people who have to look after their parents." And elder care is even more problematic because there are different issues when it comes to leaving alone a child versus a parent, said Allison Taylor, a lawyer at the law firm Stringer in Toronto. In Miraka v. A.C.D. Wholesale Meats Ltd., 2016, it's obvious the employer over-reacted to the situation in dealing with a person who'd only been on the job for a month and taking the view it was a matter of reliability, she said. "ey haven't really clued into the fact that care for kids is not a reliability issue, it's an issue that requires accommodation." While A.C.D. — citing the 2014 case of Canada (Attorney Gener- al) v. Johnstone in which a parent claimed she had a right to modi- fied hours of work to accommo- date childcare obligations — felt Miraka did not make reasonable efforts to find alternate arrange- ments, Johnstone was different in that it involved an employee looking for long-term accommo- dation, said Price. Johnstone was very much about a formal request, said Bawden. "It was going to be a long-term, continuing issue — the employer could then foresee and budget around this issue, whereas this decision wasn't, it was an ad hoc, kid-got-sick kind of thing, of inde- terminate length — no warning, no ability for the employer to bud- get or foresee it and yet this was a decision that was reached." As a general rule, employees must plan for the care of their kids by setting up workable, rea- sonable childcare, said Jennifer Bernardo, an associate at Baker & McKenzie in Toronto. "But to equate that to a couple of days where this man's wife is sick and suggest he should be running off and looking for other childcare alternatives for a couple of days, those are distinguishable situa- tions…. on a sporadic basis, things happen and people don't have the time to do that, nor should they be required, as the court points out here, to hire someone off the Internet to come look after their kids for two days. "Unless people are going to be expected to have ongoing backup plans when they have a spouse at home, which is not the law at this time, then when the spouse at home is incapacitated, I think it can be expected that the spouses at work may have to pinch hit that situation." But it can be difficult when an ill spouse is involved and, for privacy reasons, an employer can't access medical information, said Taylor. "To a certain extent, you just have to take their word for it that that's what's happening. And that's always a little tricky because it is easy to abuse, frankly." As for making reasonable ef- forts to find alternative childcare, Miraka said there was no one for him to call and everyone else was busy — and the tribunal said that made sense. "I am not convinced that the requirement to demonstrate rea- sonable efforts to make alternative childcare arrangement applies in cases like this, where there is only an infrequent, sporadic or unex- pected need to miss work to take care of one's children," said Price. e tribunal basically said it would be more unreasonable to find a babysitter on Craigslist, which could place the children in harm's way, said Bernardo. And the HRTO did not say an employ- ee doesn't have to make any effort to find other options, but there has to be a balance between try- ing to ensure there is respect for family obligations and ensuring a business is still running. Accommodation should be a collaborative basis, taking into account what's reasonable and practical in the circumstances while being case-specific, said Bernardo. "Employers can and should make inquiries into the reasons for the need in order to establish that the code protection has been triggered. is includes, for in- stance, any relevant information and documentation substantiat- ing the need." And if a short-term need de- velops into a long-term need, the employer should ensure the employee has demonstrated rea- sonable efforts to find alternative childcare arrangements, she said. Human rights legislation is becoming ever more entwined in employment law issues, said Bawden. While Miraka likely did not have the right to take time off to care for his children under On- tario Employment Standards Act, 2000 (ESA), the law is clear that the standards establish minimum standards, and the Human Rights Code clearly contemplates "family status" as a protected ground. "Employers need to be wary that looking simply at the ESA might get them in trouble if they think they're safe or protected be- cause the ESA's silent on this," he said. "e human rights tribunal doesn't care very much about what the ESA provides as minimums." Respect for family obligations crucial CHILD CARE < pg. 1 work. And if workers are injured, the company will help them ap- ply for employment insurance to make sure people are aware of what they're entitled to. GoodLife also offers long-term disability plans and provides free CPR training, she said. But the lack of WSIB protection was a big concern for workers, said Navjeet Sidhu, researcher and communications officer at Work- ers United in Toronto, which has 10,000 members across Canada. "is is very physical type of work and if you get injured, there was no protection for them." People have also had to pay out of pocket for their own equipment and for GoodLife's internal certi- fication system, which requires renewal on a yearly basis, he said. "e costs of working at Good- Life kept adding up." GoodLife also made a point to better explain its compensation, said Free. "We're constantly doing com- petition analysis to make sure we are competitive with other fitness clubs in the region." e negotiated wage increases unions have been able to deliver over the last 10 years are basically near the rate of inflation, said Murray. "Workers out there know that and they're not easily persuaded with the promise that they're go- ing to get a huge wage increase if they join the union. And to be fair to the unions, I don't believe that they actually go around making those kinds of promises." So throwing money at the pos- sibility of a problem is not really the best way for employers to ap- proach discontent, said Murray. "It's useful for employers to have objective evidence that they can present to employees to show that their wages are competitive, that their policies are progres- sive, that the types of terms and conditions that their unionized competitors offer are no differ- ent than what they offer, or in fact what they offer can be superior in some ways." What more motivates people is if they feel they have not been treated fairly, he said. "ere's a sense they're not get- ting fair treatment and… each workplace has its own set of griev- ances and if there are enough that cause many employees to feel their employer is not treating them fairly, then the union has a greater chance of succeeding in organizing those employees." While GoodLife kept reiterat- ing its position about improving conditions for employees, and it started to back off on some of the costs, said Sidhu, "there wasn't any meaningful or substantive chang- es that employees felt like, 'OK, maybe we don't need a union.' I think they were just piecemeal provisions that workers felt it was not enough and 'We still need col- lective representation.'" A lot of companies say they have an open door policy and open communication but it's very easy to say that and another thing to actually do it, said Murray. "ey need a culture whereby individual employees are able to come to their managers and se- nior managers with legitimate concerns… and feel like they get a fair hearing and that their con- cerns are at least addressed fairly." And once an application for certification has been made, changes to the terms and con- ditions of employment can't be made, said Murray. "You can't promise, 'Oh, we're going to give you a wage increase if you vote no.' at's an unfair labour practice. If you do that, you could wind up being certi- fied by the labour relations board through its power to order reme- dial certification," he said. "It's a very effective check on the over-zealous employer that wants to cross the line." Impact Going forward, GoodLife will face a new way of doing things when it comes to areas such as compensation, promotions and discipline for employees who are unionized. "Discipline becomes much more complicated — it's subject to a grievance procedure and that can ultimately result in any disci- plinary decision being overturned by a neutral, third-party arbitra- tor," said Murray. "HR is held a lot more account- able in a unionized workplace, and operational management is going to be held a lot more accountable in a unionized workplace." There will also be divisions among the workforce, with some employees not wanting to be in the bargaining unit while others are eager to take an active role in the negotiation of the first agree- ment, he said. "There's not much (an em- ployer) can do post-certification about that, other than to treat people fairly with an even hand and pay no regard to who sup- ported the union and who didn't. at's a critical point…. favourit- ism against people who supported the union is in fact illegal because any kind of discrimination based on whether someone supported the union or not is unlawful." It's about setting a positive tone, said Sidhu. "Often, employers may be angry that workers decided to unionize and that starts things off on a bad foot and we definitely don't want to start going down that road of being in a hostile kind of negotia- tion environment." GoodLife plans to continue to have a positive and collaborative relationship with all employees, according to COO Jane Riddell in a release. "is is new territory for us but we are confident that we will be able to work together with our employees to create a healthy and successful future for all." Perceptions of fairness matter GOODLIFE < pg. 1 "I am not convinced that the requirement to demonstrate reasonable efforts to make alternative arrangements applies here." Credit: Sarah Dobson Going forward, GoodLife will face a new way of doing things when it comes to compensation, promotions and discipline, said one lawyer.

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