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Investigating Complex Cases
While you’re here, you may wish to attend one of our upcoming workshops:
Who should you believe? This course is for anyone who has investigated allegations but struggled to make a finding. Learn about the science of lie detection, which approaches work and which don’t, and valuable tools to assist you in making decisions. Investigators will leave confident in making difficult credibility decisions. Participants will be provided with comprehensive materials explaining these concepts and tools to better support them in their investigative practice.
The Little Buddies Preschool Centre recently learned some valuable lessons about how human rights laws work in Ontario.
Amber Lougheed had worked for Little Buddies as an Early Childhood Educator for just over a year when she learned that she was pregnant with her second child. Ms. Lougheed was a single mother and so had often looked to Little Buddies to support her with her child-care needs – she had taken time off to care for her son, brought him to work on occasion and even brought him along on Little Buddies field trips. However, at the time that she learned she was pregnant, there were already two other pregnant employees working at Little Buddies, so the need to accommodate another employee’s doctor’s appointments definitely put extra pressure on this small employer.
Shortly before a pre-planned vacation, Ms. Lougheed decided to accept a new position with Little Buddies. Apparently, she did not realize that the new position came along with a change in her schedule and so, when she returned from vacation and checked, she was surprised to see that her first scheduled day back to work on Monday conflicted with a pregnancy-related doctor’s appointment. She communicated with the owner of Little Buddies through Facebook and a heated exchange followed over a number of days, in which Ms. Lougheed accused the owner of being “unprofessional” and in which the owner brought up a number of performance issues and commented that Little Buddies had been “way too accommodating.” Although Ms. Lougheed was ultimately granted the day off to attend her appointment, she was fired two days later, supposedly for performance reasons. She brought an application to the Ontario Human Rights Tribunal (“OHRT”) and the decision was released earlier this month.
The OHRT held that Little Buddies had not discriminated against Ms. Lougheed in failing to accommodate her family status, as the evidence clearly showed that they had accommodated her repeatedly throughout her employment, and ultimately by granting her the Monday off before her termination so she could attend her doctor’s appointment. However, the OHRT went on to consider whether the fact that Ms. Lougheed was pregnant (or took time off related to her pregnancy) contributed in any way to her firing, recognizing that this would not need to be the sole reason for termination; it only had to be a contributing factor. The OHRT accepted Little Buddies’ evidence that there were indeed legitimate problems with Ms. Lougheed’s performance, but nonetheless could not reconcile the decision that was made to fire her within two days of her returning from taking a day off for a doctor’s appointment. It was held that Little Buddies had fired Ms. Lougheed at least in part because of her pregnancy.
When deciding on a remedy, the OHRT considered evidence that came out at the hearing that Ms. Lougheed had posted a photograph of a child from Little Buddies on Facebook several months after she was fired. The OHRT accepted that she would have been fired for such a serious breach of privacy and so limited her monetary compensation to the amount she would have earned up to this point only. She was also awarded $10,000 for injury to dignity, feelings and self-respect, an amount which was held to be on the low end of the range and took into account that Ms. Lougheed had contributed to her own dismissal through her various performance issues.
So what lessons can employers learn from the Little Buddies decision?
- The owner of Little Buddies testified that she had been told by someone at the Ministry of Labour that, as a small employer, she was not required to accommodate an employee’s doctor’s appointments. Although the accommodation was ultimately provided, this advice was incorrect. In addition, the owner of Little Buddies called the Ministry again before terminating Ms. Lougheed and was advised to document Ms. Lougheed’s performance issues before her dismissal. As a result, the owner presented Ms. Lougheed with four Employee Discipline Forms to sign at the same time that she was fired. Her refusal led to a very difficult and hostile termination meeting. Do not take employment or human rights law advice from the Ministry of Labour. In this case, investing in the counsel of an employment/human rights law specialist would likely have helped Little Buddies avoid this legal liability.
- Although an employer’s size will be a factor in determining the extent to which it is required to accommodate an employee’s human rights issues, it does not remove those obligations. All employers have a duty to accommodate.
- The OHRT noted that Little Buddies’ owner openly expressed frustration with Ms. Lougheed’s accommodation requests, specifically that she would not follow the rules about how to request time off and would leave early without permission or notice. The OHRT found that such expressions of frustration did not represent a human rights violation in this case because the frustration was justified, but left open the possibility that expressions of frustration of this nature could give rise to a finding of a human rights violation. Be careful about allowing frustration to leak into communications with employees on the subject of accommodation.
- Even though the OHRT accepted that Little Buddies learned of additional performance issues after Ms. Lougheed took the Monday off to see her doctor and before she was fired, the OHRT still had difficulty accepting that the decision could have been made for these reasons alone. While it was recognized that sometimes employers are victims of unfortunate timing, here the Facebook notes sent by Little Buddies’ owner and at least one of the Discipline Forms prepared by Little Buddies drew a connection between Ms. Lougheed’s performance issues and her requests for accommodation. For the OHRT, this evidence was sufficient to prove that the pregnancy factored into the decision to terminate. Timing in human rights cases often matters, as does the nature of written communications, both in writing and on social media.
- Another problem for Little Buddies in trying to rely on the performance issues as the reason for termination was that the owner testified that she had sent a detailed Facebook message to Ms. Lougheed several months earlier outlining her concerns, but Ms. Lougheed denied ever receiving the message. Ideally communicate performance concerns in a manner which ensures receipt on the part of the employee, and keep good records.
- Finally, the OHRT further decided that, because of the nature and content of the Facebook posts and their reliance on advice from the Ministry of Labour, Little Buddies would benefit from training on their human rights obligations. The owner and all management staff at Little Buddies were ordered to take an online course provided by the Ontario Human Rights Commission (“Human Rights 101”) within 30 days of the decision. The OHRT has broad remedial powers and will not hesitate to order employers to take steps necessary to ensure no future human rights violations.
About the Author: Toronto Employment Lawyer Christine Thomlinson is a co-founder and co-managing partner of Rubin Thomlinson LLP. Appearing regularly on Best Lawyers and Leading Practioners lists in Canada, Christine is known for her high capability to think strategically, and her ability to find practical, often innovative, legal solutions to her clients’ challenging workplace issues.