Canadian Employment Law Today

6 | March 29, 2017 Canadian HR Reporter, a Thomson Reuters business 2017 ing job, as she had to hang items on racks and move them to the retail floor, but was straight days, Monday to Friday, each week. Over the next two-and-one-half years, Misetich gradually developed a repetitive strain injury to her left hand and arm. Her doctor completed a functional abilities form (FAF) in January 2013 that set out restric- tions for the use of her left hand, including no lifting, bending, or twisting with her hand and arm for at least 14 days. e store manager offered Misetich tem- porary modified duties that involved gen- eral maintenance, rolling racks, cash, and customer service with the expectation she would return to work on Jan. 11, 2013. In ad- dition, the manager said her shifts and hours might vary based on the needs of the busi- ness — days, nights, and weekend shifts were all on the table. New hours a problem However, Misetich declined the modi- fied duties, stating that the variable hours would place a hardship on her because she prepared evening meals for her 86-year-old mother. Another FAF from her doctor con- firmed the earlier restrictions and extended them for another 14 or more days. Misetich told Value Village on Feb. 14 that she was available to work cash on days from Monday to Friday. She reiterated that she couldn't work evenings, weekends or on-call shifts because she cared for her mother. A few months passed and the store man- ager sent Misetich a registered letter on June 28 requiring medical evidence to support her ongoing absence and her request for accom- modation for her eldercare responsibilities. e manager indicated he needed medical evidence that Misetich was the only care- giver for her mother, her mother couldn't take care of herself, there was no one else to provide the care, and Misetich had taken "all reasonable steps to self-accommodate and/ or resolve the conflict created by the parent who requires elder care." Misetich replied that she was asking to continue working her normal, daytime weekday shift so she could continue her el- dercare responsibilities. She was offended by the request for proof that she had taken reasonable steps to self-accommodate or resolve conflict created by her mother's care requirements, arguing the conflict stemmed from Value Village changing her normal work hours. She also refused to share her mother's private medical information. On July 8, the store manager once again requested a physician's note to validate her continued absence from work, as well as evidence to verify that working evenings and weekends would cause her undue hardship. e next day, Misetich advised she was still having problems with her left hand and arm and would provide a physician's note. Misetich's doctor provided a form on July 19 stating she would continue to have restrictions on her hand and arm for a fur- ther 12 months and she could work three to four hours per day, every other day, for two to three days per week. e doctor — who was also Misetich's mother's doctor — also wrote a note saying Misetich couldn't work outside her normal hours because she had to take care of her mother. It was finally agreed that Misetich would return to work on Sept. 3 and Sept. 6, work- ing three-and-one-half hours each day, and call the store for her weekly schedule after that. She would work mainly on cash, with a few other light duties. However, Value Village's claims manager didn't accept the doctor's note regarding Misetich's mother's care. Once again, evi- dence was requested to prove there were no reasonable alternatives for caring for her mother on certain evenings. Misetich was told a failure to co-operate could be viewed as insubordination and put her job in danger. She didn't work the two scheduled Septem- ber shifts. In mid-September, the store manager again requested medical information to confirm the eldercare Misetich's mother received during the day wasn't available in the evenings and during weekends, and Misetich had made reasonable efforts to find alternate care. A failure to return to work or provide acceptable evidence by Sept. 26 would result in termination of employment. Misetich responded on Sept. 24, saying her doctor was on vacation until Sept. 30 and she wasn't abandoning her position. Howev- er, her employment was terminated on Oct. 1 for job abandonment. Misetich provided a doctor's note saying the daytime hours she had worked for the past several years suited her elderly mother's needs, but the store manager didn't accept the note. Misetich filed a human rights complaint claiming the change in hours was discrimi- nation with respect to employment because of family status. Negative impact not necessarily discrimination e tribunal noted it was important to keep in mind that "not every negative impact on a family obligation, or conflict between a fam- ily and work obligation, is discriminatory." However, it disagreed with the notion that there was a different test for family status discrimination than for other forms of dis- crimination, as it contributed to "inconsis- tency and uncertainty in the law." "An applicant must establish that he or she is a member of a protected group, has experienced adverse treatment, and the ground of discrimination was a factor in the adverse treatment," said the tribunal. "ere is no principled basis for developing a dif- ferent test for discrimination depending on the prohibited ground of discrimination al- leged." In addition, past decisions — such as Johnstone v. Canada (Attorney General) and Campbell River & North Island Transition Society v. H.S.A.B.C. — looked at the legal liability and interference with parental and family obligations. However, the tribunal found many obligations for caregivers don't necessarily come from legal responsibilities but are still essential, and limiting human rights protection to legal responsibilities wasn't fair. e tribunal also found there was a differ- ence between discrimination and accom- modation — a negative impact on someone doesn't automatically mean discrimination, as a protected characteristic must be a factor in the adverse treatment. e tribunal found that Misetich didn't provide any information to Value Village about her eldercare requirements except that she provided evening meals for her mother. She didn't provide any information as to why she couldn't provide evening meals when she worked evenings the same way she provided mid-day meals when she worked days. As a result, there was no evidence in- dicating Misetich's ability to provide evening meals for her mother was adversely affected by the requirement to work days, evenings, or weekends, said the tribunal. e tribunal determined Misetich's claim of discrimination was unproven and dis- missed the complaint. During the hear- ing, Misetich provided information on her mother's medication, language skills, and their living arrangements that might have been able to establish that the change in hours constituted adverse treatment be- cause of family status. However, none of this information had been provided to Value Vil- lage and therefore didn't play a role in the de- cision to terminate Misetich. "(Misetich's) employment was terminated because she failed to comply with the direc- tives given by (Value Village) and refused to work the September shifts," the tribunal said. "In fact (Misetich) had not attended work since January 2013. I find that she had aban- doned her position." For more information see: • Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (Ont. Human Rights Trib.). • Johnstone v. Canada (Attorney General), 2008 CarswellNat 661 (F.C.A.). • Campbell River & North Island Transition Society v. H.S.A.B.C., 2004 CarswellBC 1012 (B.C. C.A.). « from FAMILY STATUS on page 1 Employee not forthcoming on mother's care

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