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Queen's University
 

Devaney and ZRV Holdings 2012 HRTO 1590

Facts

In 2009, after 27 years of service, an architect (Devaney) was dismissed from ZRV Holdings (an architectural firm) for excessive absenteeism.  The firm offered to take him back on a contractual basis, paying him only for work completed onsite. He refused and brought forward a complaint of discrimination to the HRTO.

Devaney claimed that his absence from work was a human rights requirement on the basis of family status; over the last decade, his elderly mother, who was sick and growing sicker,  more and more incapacitated, depended increasingly on him to take care of her, feed her, give her medication, bring her to medical appointments, surgeries, rehabilitation sessions etc.  While he had limited support from a brother (who would help in the evenings several times a week) and the government (which provided one hour of service in the mornings to dress his mother), he was the principal care-giver.  His mother’s condition worsened in 2007-2008 causing Devaney to be absent more frequently from work for human rights-related reasons and she was eventually put on a waiting list for a nursing home. 

He was also excessively absent for reasons not related to his mother’s care; for example he would often arrive late at work to avoid rush hour traffic and would frequently take off the entire day when he had to take time off to accompany his mother to appointments.  A lot of the time he took off was not accounted for one way or another.

Devaney claimed that although he was very frequently absent from the office during core hours (8:30-5:00) he worked more than full-time hours (he had submitted claims for thousands of hours of overtime) and was performing very well; the client for the multimillion dollar project he was leading was so satisfied with his work that he hired him one week after ZRV fired him.  He claimed that he was perfectly capable of performing from home the work that ZRV was requiring him to do from the office. With modern technology, face-to-face interaction is no longer necessary.    

The partners of ZRV Holdings became increasingly irritated with Devaney’s absences, late arrivals and early departures from work.  Starting in 2007, they began writing him disciplinary warnings requiring him to work in the office during core hours, pointing out problems with staff morale. Devaney responded with emails explaining that his mother was ill, that he had to be absent to care for her, to which he received curt responses reiterating the employer’s requirement for him to be present at work during core hours.  Finally, in January 2009, his employment was terminated. In a panic, he told the Firm that things were about to change; that his mother had been placed in a home and that he would be able to be present from now on.  The Firm offered him a 3-month contractual position in which he would be paid only for work done on site; he would be stripped of his status as partner.  Devaney did not accept the offer.

Issues

1)      Did the employer discriminate against Devaney?

2)      Did the employer harass Devaney?

Decisions

1)      Yes

2)      No

Reasons

1)      The Tribunal found that some, but certainly not all, of the applicants absences were based on human rights based requirements to care for his elderly mother (family status).  Had the employer based its decision to discipline solely on the absences not related to human rights, they would not have been found responsible for discrimination.   Instead, they disciplined Devaney based on all his absences, explicitly including those related to the care of his mother.  This was the first mistake. The second was a procedural failure to investigate the applicant’s need for accommodation. The third was a substantial failure to accommodate his requirement to be absent from work to care for his mother. The Tribunal determined that it would not have been undue hardship to accommodate the applicant, because 1) there would have only been a couple of dozen absences related to family status and 2) the mother was going into a home. The offer of a contractual position was not a form of accommodation, as claimed by the employer – it was a humiliating demotion (he had been stripped of his partnership status) and did not accommodate his need to care for his mother

2)      The Tribunal found that the employer was not responsible for harassment: managing attendance is not a form of harassment. While “warnings or disciplinary communications in the workplace would be, by their by nature unwelcome to their recipients” this does not amount to code-harassment. Questioning an employee’s overtime claims does not amount to harassment either.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000