Human Rights Office

Human Rights Office
Human Rights Office

Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (CanLII)

Summary

The applicant, Tonka Misetich, alleged discrimination with respect to employment because of family status. In this case, the proposed change to Tonka’s work schedule at Value Village, to accommodate her physical restrictions, prohibited her from taking care of her eldercare responsibilities.

The applicant commenced employment with the respondent in April 2006 at its Niagara Falls store working as a part-time sales clerk working at the front of the store in retail. During this time, the applicant worked days, evenings and on-call. Around June 2010, the applicant moved to a production position in the back of the store and started working straight days, Monday to Friday.

In January 2013, the applicant developed a repetitive strain injury in her left hand and arm. In order to accommodate this disability, Value Village offered temporary, modified duties that would fit her physical restrictions. She would go back to the retail floor and her schedules would also change to rotating shifts. 

The applicant declined the respondent’s offer of modified duties on January 16, 2013. She returned the January 10, 2013 letter to the store manager with a hand-written note which stated the hours would place a hardship on the applicant because she prepared evening meals for her mother. Misetich also sent letters stating that she was only available to work regular hours Monday-Friday.

On June 28, 2013, the store manager sent the applicant a registered letter regarding her failure to provide medical evidence to support her ongoing absence from work, as well as her failure to provide medical evidence to support her request for accommodation as a result of her eldercare responsibilities. She was asked to submit a letter indicating that she was: a. the primary caregiver for her mother, b. the parent requiring elder care is unable to safely perform the duties, c. there is no one other than herself who is able to provide the care, and d. she has taken all reasonable steps to self-accommodate and/or resolve the conflict created.

The applicant responded in writing to this letter on July 4, 2013, stating that the request of information about her mother’s need was “insulting and offensive” (para. 13), and refused to share medical and confidential information. The respondent requested the applicant provide a physician’s statement to validate her continued absence from work. It was not until August 19, 2013, when Misetich’s family doctor confirmed that she was only able to work regular hours.

The claims manager did not accept the statement because she believed the doctor was the applicant’s doctor, not the mother’s doctor. The claims manager requested evidence, other than from the applicant, that there were no reasonable alternatives available to care for her mother beyond 5 p.m.

In the August 30, 2013 letter, the applicant was advised that her failure to cooperate with the respondent’s directives may be viewed as insubordination and could put her employment in jeopardy.

The applicant did not work her scheduled September shifts and on September 16, 2013, the store manager sent the applicant a third registered letter requesting medical documentation. On September 24, 2013, the applicant provided a handwritten note advising them that her doctor was on vacation until September 30, 2013, and that she was not abandoning her position. On October 1, 2013, the store manager terminated the applicant’s employment for job abandonment. The same day, the applicant attempted to provide a doctor’s note but it was dismissed by the store manager.

Question to be determine

Did the complainant establish a prima facie discrimination based on family status?

Findings

NO

Reasoning

The Court used the case Federal Court of Appeal in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (“Johnstone”) as a test to assess the potential discrimination, even though the test of legal responsibility is difficult to apply in the context of eldercare.

            The issue discussed in this case, started on January 10, 2013 when the respondent offered a change of position to accommodate the applicant’s disability request. Upon receiving the proposal, the applicant asserted the change in hours would create a hardship for her because she had eldercare responsibilities and prepared evening meals for her mother. Over the next ten months, the respondent requested medical proof from the applicant regarding her mother’s care.

The applicant provided little information to the respondent because she believed the respondent was not entitled to private information about her mother. The applicant was angry that this information was even requested. In January 2013, she told the respondent that she prepared evening meals for her mother. In February 2013, she told 2016 HRTO 1229 (CanLII) that she cared for her 86-year old parent. In July 2013, she advised the respondent that she would not share her mother’s confidential and private medical information. (para. 61)

Further, the applicant even advised her doctor to not to disclose medical or personal information to Value Village. Given the lack of details regarding Ms. Misetich’s eldercare needs, the Court considered that:

The applicant’s ability to provide evening meals for her mother was not adversely affected by the requirement to work days, evenings and weekends. The applicant could have worked these shifts and provided evening meals for her mother, when required, in the same way that she was able to provide a meal in the middle of the day. (para. 64)

For these reasons, the applicant failed at establishing a prima facie case of discrimination. And even though she provided more evidence during the hearing to support her case, she failed in doing so during the accommodation process with Value Village.

Had the applicant provided this information to the employer, the applicant may have been able to establish that the proposed change in hours constituted adverse treatment on the basis of her family status. Had she done so, the respondent may have been obligated to accommodate the applicant’s eldercare responsibilities up to the point of undue hardship. That accommodation may have been to permit the applicant to work days in production (if there were tasks the applicant could physically perform) or in retail. However, all of this is theoretical because the applicant did not communicate this information to the respondent. (para. 72)

            Finally, the Court determined that the termination of employment was not discriminatory in nature and the application was dismissed.