'If you don't show up, you are fired'

The Human Rights Tribunal of Ontario has found that an employer discriminated against a former worker with cerebral palsy by failing to accommodate her medical needs.

Peninsula Grill and its proprietor, Denis Davis, have been ordered to pay $15,000 to Michelle Tompkins, a server who was let go from her post in 2018. The amount covers compensation for injury to dignity, feelings, and self-respect, as well as $407.68 in lost wages.

Tompkins, who also had other medical conditions, filed the application after she was terminated in May seven years ago. She alleged that she was dismissed after requesting a shift change to attend a medical appointment and after repeatedly asking to be scheduled within her physical limitations. According to the Tribunal, Tompkins had informed her employer at the time of hiring that she could not work more than 25-30 hours biweekly due to her disability.

The Tribunal found that, although Tompkins was initially scheduled within her stated limitations, her hours were later increased, resulting in pain and health complications. When Tompkins requested a shift change to attend a medical appointment, Davis responded by text message, “If you don’t show up you are fired.” Tompkins was terminated the following day.

Tribunal’s decision and reasoning

Todgham Cherniak, Vice-chair of the Tribunal, wrote, “Ms. Tompkins has established a link between her request to change her shift on May 30, 2018 to attend a medical appointment and her disability.

“Based on the uncontested evidence before me, Ms. Tompkins informed Mr. Davis about her disability when she was hired, that she was having health-related difficulties working for more hours, and that she had a medical appointment. When Mr. Davis told Ms. Tompkins that she would be fired if she failed to show up for her shift in order to go to her medical appointment, the respondents violated the Code.”

The Tribunal also found that Peninsula Grill failed to accommodate Tompkins’ disability on at least two occasions by scheduling her beyond her stated limitations.

“I find that the respondents were made aware of Ms. Tompkins’ medical condition and her need for accommodation. I accept that Ms. Tompkins told the respondents about her disability when she was interviewed for the job. I also accept that Ms. Tompkins told the respondents about her limitation that she could not work more than 25-30 hours bi-weekly. This triggered the respondent’s duty to accommodate Ms. Tompkins,” Cherniak stated.

In Ontario, employers are also legally required under the Accessibility for Ontarians with Disabilities Act (AODA) to make job postings accessible and to notify applicants of available accommodations during hiring.

Legal context for HR professionals

The Human Rights Commission of Ontario notes that under the Ontario Human Rights Code, employers, unions, housing providers, and service providers have a legal duty to accommodate the needs of people with disabilities who are adversely affected by a requirement, rule, or standard.

“Accommodation is necessary to ensure that people with disabilities have equal opportunities, access and benefits. Employment, housing, services and facilities should be designed inclusively and must be adapted to accommodate the needs of a person with a disability in a way that promotes integration and full participation,” it says.

According to the Supreme Court of Canada, the goal of accommodation is “to ensure that an employee who is able to work can do so.” In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. “The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship,” says the Supreme Court.

Tompkins also alleged reprisal, but the Tribunal found insufficient evidence that her termination was intended as retaliation for asserting her rights under the Code.

Employers also need to accommodate pre-emptive requests from immunocompromised employees amid an outbreak of diseases, according to a previous British Columbia Human Rights Tribunal decision.