October 1, 2018
When we act as counsel to employers, we can be confronted with policies and practices which often have been in place for a long time and may turn out to not actually be in compliance with employment standards requirements. If we work together, we can attempt to find a route typically to become compliant and take comfort that, with the passage of time, past wrongs become statute barred.
However, there is one workplace practice that consistently comes up which is non-compliant with the Employment Standards Act, 2000, but employees really covet and employers are apprehensive to change: The “condensed work day”. In the condensed work day, employees work through lunch without a break (i.e. more than 5 straight hours) and either leave early each day, or save up that time for a very short day on Friday. This practice is not compliant.
A recent decision involved consideration of an employer that reversed this practice and the employee took the position that the change to her working terms constituted constructive dismissal. The court concluded “the plaintiff cannot succeed in a claim that the employer has changed the terms of employment, when the change is driven by the employer’s need to act in compliance with applicable employment law.”This should give employers comfort that while their staff may not be happy, they can comply without the change itself creating further legal exposure. That essentially was quite a small part of this decision though.
The decision is really about the plaintiff, a woman returning from maternity leave and whether or not her childcare needs were properly accommodated by the employer as required under the Human Rights Code and fell under the protected ground of “family status”. The story presented at trial had a wide number of twists and turns however, by the sound of it, the plaintiff should have had her needs accommodated and the employer could have been legally required to do so. However, the court found that the plaintiff did not clearly communicate with her employer at the time about what she needed and why.
The court commented that the plaintiff provided her employer with “very little information about her childcare arrangements” and, in particular the changes to those arrangements which were material, namely that her mother was no longer living with her and could no longer assist with before school childcare for her two elder children.
This is a reminder that the accommodation process is a joint process and both parties have obligations to communicate information and identify workable solutions. Unfortunately, the lack of communication rendered the claim for discrimination as a result of her employer’s failure to accommodate “theoretical”.
Peternel v. Custom Granite & Marble Ltd. 2018 ONSC 3508