May 30, 2016
Termination during the probationary period without payment or notice, often thought to be an automatic entitlement of employers, is always subject to the caveat “except for a discriminatory reason”. That was the expensive lesson for one Ontario employer recently.
The company was a distributor and the employee hired as a delivery truck driver. He was terminated after six weeks of service on the grounds that he was “unreliable”. The employee had been required to stay home with his sick children, aged one and four, for two days in a row because his wife, who normally took care of the children was ill. The following day, he returned to work and had to leave after experiencing a sharp pain in his side. He was diagnosed with a hernia and scheduled for surgery roughly 2 weeks later. He applied for WSIB. His employment was terminated.
The Human Rights Tribunal of Ontario concluded the employee’s probationary period was not relevant if there had been an act of discrimination under the Human Rights Code (the “Code”).
The Tribunal considered next whether there had been any discrimination. The employee’s wife was unable to care for the children who could not be left alone as they were very young. This engaged the employee’s legal responsibilities as a parent. The tribunal accepted that the employee did not have anyone else to care for the children and did not require that the employee demonstrate having made efforts to find care for them. The Tribunal distinguished the facts in this case from an employee requiring a permanent accommodation for childcare on the basis of family status finding the efforts required where there is only “infrequent, sporadic or unexpected need to miss work to care for one’s children does not require reasonable efforts be demonstrated. Instead, the employee need only show a “bona fide childcare problem” has resulted in the employee being unable to meet his or her work obligations. Accordingly, the employee was unable to work for two days for reasons protected on the “family status” ground under the Code. The Employee suffered from a hernia and therefore was unable to work the third day because of “disability”, a protected ground under the Code.
His absence on these three days was a significant part of the reason the company decided to terminate his employment. Accordingly, he was discriminated against contrary to the Code. The employee was awarded $10,000 as monetary compensation for injury to dignity, feelings and self-respect. The Tribunal noted that this amount was at the “lower end” of the range of cases involving termination of employment. However, it was appropriate having regard to the employee’s short service and because there were some non-discriminatory reasons which supported the employer’s decision to terminate.