Canada: Human Rights Tribunal of Ontario finds dismissal following lengthy unauthorized absence from work not discriminatory
The applicant in Joseph v. Tecumseh Community Development Corporation, 2019 HRTO 635 worked as a Business Development Officer for the respondent employer. Soon after the applicant was required to report to a new General Manager, their relationship began to deteriorate. Over the subsequent months, the applicant raised concerns with respect to scent sensitivity. This claim was not substantiated.
Some time later, the applicant requested a medical leave of absence indicating that she had been caring for her son, who had experienced a serious mental health crisis. The employer granted leave. The leave was later extended at the applicant’s request. In spite of this, the applicant contacted the employer’s Board president and raised human rights concerns regarding her alleged scent sensitivity and disclosing her son’s circumstances. The following month, the applicant requested an extension of her leave of absence; however, no supporting medical documentation was provided.
The employer took the position that the leave was unauthorized, and that unless the applicant provided adequate medical documentation to support her request, the employer would consider her to have abandoned her position. In spite of subsequent correspondence between the parties regarding this issue, and while the applicant submitted a letter from a psychiatrist regarding her son’s condition, she failed to provide adequate medical documentation substantiating her own request for a medical leave. The applicant’s employment was terminated for cause.
Before the Tribunal, the applicant argued that she had been discriminated against on the basis of disability, family status, and had experienced reprisal. The Tribunal dismissed all allegations, including the allegations of reprisal. The Tribunal pointedly noted that the applicant was “entrenched” in her position about her rights under the Ontario Human Rights Code (the “Code”), and that she did not have to report to her manager or comply with the manager and the employer’s directives, and that the applicant had not appreciated that accommodation is a two-way process. In accordance with established jurisprudence, the Tribunal reiterated that, under the Code, the applicant was required to cooperate in the efforts to accommodate her through an authorized leave of absence by providing sufficient information, which she failed to do.
This decision provides helpful guidance regarding what the Tribunal may consider reasonable efforts to accommodate employees requesting a leave for medical or family status reasons. Of particular relevance to employers is that the Tribunal determined that the applicant could not rely on after-the-fact evidence about her family status responsibilities and her health situation in order to establish discrimination under the Code. Rather, the reasonableness of an employer’s accommodation efforts will be based on the evidence available to the employer at the time the decision was made.
