'You have to report to work absent extenuating circumstances or [human rights] issues': lawyer
An Ontario arbitrator has upheld the termination of a worker for being absent without authorization and dismissed the worker’s claims of racial and gender-based harassment and discrimination during her employment.
“An employer doesn't have to agree to amend somebody's shift schedule, especially where the request is because the employee would like to have another job,” says Madeleine Loewenberg, an employment lawyer, workplace investigator, and mediator at Loewenberg Psarris in Toronto. “That being said, it's a good practice to at least consider the request, because if you lose an employee in a situation where you could have kept them, that's a real loss for the company, particularly due to the cost of losing an employee and having to retrain their replacement - you can avoid those costs just by considering such a request.”
The worker, who was a Black woman of Jamaican descent, was a part-time heavy-duty cleaner with the City of Toronto who was hired in November 2016. She usually worked afternoons and evenings Tuesdays to Fridays and Saturdays from noon to 8:30 p.m. According to the worker, she often didn’t get enough hours, although her shift schedule usually was around 34.5 hours per week with at least 20 hours per week that was offered in her letter of employment.
In December 2018, the worker told her supervisor that she had obtained a part-time job at a local hospital because she didn’t feel she was getting enough shifts with the city. She asked to change her schedule to five hours on weekdays and eight hours on Saturdays to accommodate her second job.
The city accommodated her request and she was scheduled for 17 shifts per month.
Accommodated shift schedule
On May 24, 2019, the worker advised her supervisor that she wasn’t available to work for the city until 4 p.m. on Saturdays. The supervisor said they couldn’t accommodate this request due to operational needs, but after a June 3 meeting, the supervisor drew up an accommodated schedule with reduced hours on Saturdays. The worker agreed to the schedule.
However, the worker was off sick from June 12 to 15 and June 18 to 22, providing a medical note excusing her from work. She didn’t give the note to her hospital employer as her need was to avoid stress from her city job.
During the worker’s sick leave, she called the facilities manager and advised that she was starting a full-time position at the hospital on July 8 and needed another schedule change – she would be available only on Saturdays from 7 a.m. to 2 p.m.
The facilities manager said that early shifts on Saturdays were filled by staff with more seniority and none were available. He suggested a schedule of four, four-hour shifts during the week and a Saturday shift starting at either 12:30 p.m. or 4 p.m. The worker accepted this revised schedule.
However, a couple of days later, the worker said that the new schedule was fine until July 8 and she didn’t know what to do after that date.
At a meeting on June 24 with the manager and her supervisor, the worker raised concerns about the way the foreman of the building where she worked had spoken to her. The supervisor said they would “action” the items upon her return to work.
Unauthorized absences from work
The supervisor also asked the worker to complete an accommodation request form by the end of her shift on June 25. According to the worker, she didn’t receive the form and the supervisor said not to bother with it, which the supervisor denied saying.
The worker worked as scheduled from June 25 to July 4. On July 5, the supervisor said the city wasn’t able to schedule her only on Saturdays.
The worker missed her shift on July 9 and the supervisor reminded her to stick to the posted schedule. On July 15, the supervisor emailed the worker to reiterate that the city couldn’t schedule her to work Saturdays only and she was absent without approval since July 9. The worker was required to provide satisfactory reasons for her absence at a July 18 meeting, as required under the collective agreement.
The worker didn’t provide a valid reason at the meeting, although she said she left a note the day before in the office explaining that her doctor was on vacation and she would bring a letter on July 29. The supervisor never saw this letter.
On July 19, the city terminated the worker’s employment for missing eight scheduled shifts without a satisfactory reason or approval. The termination letter also mentioned that she had stated she was working for another employer and wasn’t available for her scheduled shifts.
“The city reached out to [the worker] and told her that she could request an accommodation if she needed one,” says Loewenberg. “And that's important, because if you've got an employee that's suddenly missing a lot of shifts or needs an accommodation in their shifts, it’s required to consider human rights reasons for the need to switch that shift.”
Employee termination after absences
“The city was pretty sure that she was asking for these shift changes because of her other job, but they didn't say that,” adds Loewenberg. “Instead, they asked her to complete an accommodation form and she didn't - which was obviously a problem for her and also impacted her credibility - so they emphasized the importance of attending her shift and waited 10 days before letting her go.”
The union filed a grievance claiming discharge without just cause, arguing that the worker had a legitimate reason for her absences. It also argued that she had been discriminated against and harassed during her employment on the basis of her race and sex, as she had been treated more harshly than other workers by the foreman.
According to the worker, the foreman’s harassment involved following her and “trying to find something to complain about” and knocking on the ladies’ restroom door when she was inside, telling her to hurry up and finish her work. The worker also claimed that, on one occasion, the foreman “barged in without knocking” that made her feel unsafe at work, and he spoke to her harshly. The worker claimed that she reported this to her supervisor, but he didn’t take any action.
The supervisor said that the worker didn’t make any allegations of sexual harassment and had only raised a concern about the foreman raising his voice.
The arbitrator found insufficient evidence to support the worker’s claims of racial or sexual harassment. The arbitrator noted that she hadn’t raised these concerns in a timely manner with the employer or the union and the evidence presented didn’t demonstrate any adverse impact based on her protected characteristics.
Timely harassment, discrimination claims
The decision reinforces that if an employee wants to make a claim of harassment or discrimination, it should be made promptly and clearly, according to Loewenberg.
“[The foreman] was probably looking to see if the worker was working - it wasn't ideal, although maybe not the most egregious behavior,” she says. “But the worker didn't pursue the complaint and then raised it for the first time when she became disgruntled about her request for a new shift schedule.”
The arbitrator also determined that the city had just cause to terminate the worker’s employment. It found that her failure to report for her shifts – after she had agreed to the schedule – which was compounded by scheduling conflicts with her new full-time job, was incompatible with her continued employment. The arbitrator also had issues with the worker’s credibility when she said she couldn’t recall if she worked at the hospital when she was absent from her city shifts.
“Missing shifts was the more egregious issue that would give rise to a termination for cause in a case like this,” says Loewenberg. “You have to report to work absent extenuating circumstances or issues that are grounded in the Human Rights Code - the worker gave no particularly compelling reason why she was unable to report to work.”
In addition, the evidence didn’t substantiate the worker’s allegations of discrimination or harassment based on race or gender, said the arbitrator in dismissing the grievance and upholding the termination.
“The reality is, the city tried to change [the worker’s] shifts three times for her, and the whole case was about whether or not she should be able to have a second job,” says Loewenberg. “I don't think the outcome was shocking, to be honest, but it’s a good reminder that employees have to make their complaints clearly and pursue them in a timely way, and employers should consider and document these requests, while looking out for human rights issues.”
