'Employees can't expect the moon… without properly indicating what they need'
A worker’s allegation that her former employer failed to accommodate her and that her dismissal was a reprisal has failed because she never disclosed a disability to her employer, the Ontario Human Rights Tribunal has ruled.
“The accommodation process is a two-way process and it’s also the responsibility of the employee to engage in that process,” says Christopher Achkar, an employment lawyer and principal of Achkar Law in Toronto and Ottawa. “Here, the [tribunal] said that the [worker] didn't engage in it.”
The worker started working as a co-op student in May 2015 at a Dairy Queen Grill and Chill ice-cream and fast-food restaurant in Huntsville, Ont., operated by Adamanda Inc. Her initial stint ended in May 2016, she returned briefly in October that year, and then worked from January to April 2017.
The worker’s manager at the restaurant was also her first cousin.
On April 12, 2017, the worker fainted, hitting her head and arm as she fell and then hitting her head again on the floor. She didn’t report the injury to the restaurant, but she went to the hospital, where she was diagnosed with a concussion. A doctor provided a note saying that she was unable to work for the next week, until April 19.
A short-lived return to work
On April 20, the worker returned to work but felt sick during her shift. She left early and the next day her mother called to say that the worker was unwell and unable to work. According to the worker’s mother, the restaurant’s co-owner was rude to her and hung up on her. The worker didn’t return to work the next day or notify the restaurant that she wasn’t coming, so she was removed from the work schedule.
In December, the restaurant asked the worker back because her cousin was a manager. The worker agreed and resumed her position for three months.
On March 1, 2018, the worker requested time off for a doctor’s appointment. She was initially refused because two other employees were off that day and her cousin made unkind comments to her about it. However, management relented and allowed her to go during her break. The worker didn’t return to work and her manager – who was also her cousin – sent her angry text messages. When management contacted her the next day to ask if she was coming back, the worker said “I do not plan on coming back at all” because her manager treated her in an “unhealthy” way.
The worker filed a complaint of discrimination because of a disability and a reprisal. She claimed that she suffered from depression and the restaurant’s initial refusal to let her go to her doctor’s appointment or let her take additional time off work after her concussion was a failure to accommodate her. She also said that she was discriminated against with a poisoned work environment from discriminatory comments from her manager after taking the remainder of her March 1 shift off, which forced her to resign.
The restaurant argued that the worker’s failure to return to work was her own decision and it accommodated her by allowing her to attend her doctor’s appointment. It also argued that the worker did not provide any medical evidence of a disability or formally request accommodation for that disability.
Protected ground, adverse treatment
The tribunal referred to the legal test for prima facie discrimination that required proof of a characteristic protected by the Ontario Human Rights Code, adverse treatment, and that the protected characteristic was a factor in the adverse treatment. In addition, the legal test to establish a reprisal required proof of an action or threat made against her, the action or threat was related to an attempt to enforce a right under the code, and the employer intended to retaliate for the attempt to enforce that right, the tribunal said.
The tribunal accepted that the worker’s concussion and depression met the definition of disability under the code, although she didn’t provide medical information other than her doctor’s note recommending a week off after her fall. However, the restaurant agreed to accommodate the worker by letting her go to the doctor’s appointment, despite the operational difficulties it presented, the tribunal said.
The tribunal found that the worker did not formally request any accommodation. After her fall in April 2017, she didn’t report it to the owner and she didn’t communicate any accommodation needs related to her depression, the tribunal said, noting that an employer’s duty to accommodate is triggered when it’s informed of the employee’s need for accommodation.
Regardless, the restaurant still accommodated the worker for her doctor’s appointment and covered her shift when she didn’t return. Although the initial refusal upset the worker, she was eventually allowed to go to her appointment, the tribunal said.
As for any reprisals, the worker failed to establish any connection between enforcing a code right and any action against her, the tribunal said. The restaurant’s taking her off the schedule in April 2017 was because she didn’t show up, and she returned in October and then December anyway, the tribunal added.
No request for accommodation
A key point on which the worker’s complaint failed was the fact that she didn’t request accommodation at any point, says Achkar.
“There was no disability known to the [employer] or a request letting them know [about any disability], he says. “An applicant has to prove that they've communicated that they have a disability or the employer has knowledge of a disability, and then there has to be adverse treatment that we can link to the knowledge of that disability.
“The injury from the fall and [the worker’s] mental health issues, they didn't know about them, so they couldn’t have used them as a factor in treating her adversely.”
However, Achkar cautions that simply not knowing about a disability isn’t always a free pass on accommodation for an employer, noting that there were previous issues with the worker being late for work.
“Sometimes it's a double-edged sword - someone could be late for work regularly and they may not raise the fact that they have something that makes it difficult for them to show up on time,” he says. “The employer still has a duty to inquire whether there's an accommodation that’s needed and not just take [disciplinary] measures - here there wasn't that analysis that we'd normally see on how they used to treat her before she was regularly late.”
Familial relationship not work-related: tribunal
The tribunal also found that any negative comments from the manager were not related to the workplace but rather the fact that the worker and the manager were cousins. Any argumentative and foul language in text messages not related to work that were sent outside of work “can only be labelled as bickering among family members and cannot be considered as a poisoned work environment,” said the tribunal, noting that the worker admitted in testimony that she continued to socialize with her cousin and had a cordial relationship with her.
Having family members work together can blur the line between the workplace and non-work-related conduct – in this case, antagonistic texting, says Achkar.
“Be careful who you hire with family relationships and be careful of informal interactions,” he says. “There was certainly a benefit and leeway [for the worker], as she was rehired after some time of not working there - if you're going to complain about a family relationship, make sure that you also know the benefits of it.”
In addition, the tribunal found that the worker decided on her own to resign from her employment when she failed to return to work on March 1, 2018, and told her manager that she wouldn’t be coming back.
The tribunal determined that the worker did not disclose her disabilities or any accommodation needs to the restaurant and there was no discrimination or reprisal. The worker’s complaint was dismissed.
“Employees can't expect the moon from employers without properly indicating what they need in a request for accommodation,” says Achkar. “And if they don't necessarily treat you any better, you can't turn around and say, ‘You're treating me badly because of this,’ when really there are other reasons.”
See Leason v. ADAMANDA INC. o/a Dairy Queen Grill and Chill, Huntsville, 2023 HRTO 1652.
