Senior Executives need to become more aware of issues related to disability in workplace and in care of disabled family members says OPC

OPC’s interest in this case and one for Sr Executives to be aware of is employees are expected to take care of disabled relatives more and more as the Health Care System in each province downloads responsibility onto family members in order for the provinces to make health care ends meet. This has a direct and very negative impact on employee’s abilities to deliver excellent work and attendance at work on a consistent basis.
Devaney v. ZRV Holdings, 2012 HRTO 1590 – Family status discrimination; mandatory elder care
Devaney is an architect, who was employed by ZRV Holdings until 2009. Devaney also provided elder
care to his mother, through a flexible work arrangement that ZRV had permitted. However, as his mother’s
condition worsened, ZRV believed that his productivity was being affected. On numerous occasions,
ZRV told him that he would need to spend more time in the office, or he would be fired. Unfortunately,
Devaney was not able to do so, and he was fired, allegedly with cause. Devaney brought a human rights
complaint, alleging that ZRV had discriminated against him on the basis of family status. Finding that
ZRV had failed in accommodating Devaney, the Ontario Human Rights Tribunal awarded $15,000 in
damages. This case makes clear that “family status” as defined under the Human Rights Code includes elder
care obligations.

OPC views this case outside of the obvious decision about OH&S laws. The question on our minds and one that needs to be brought to the attention of Sr Managers is; why the heck do employees need to breach OH&S rules in order to ensure a disabled employee can attend a meeting with ease of access, dignity and equality?
Barton v. Rona, 2012 ONSC 3809 –Wrongful dismissal; duty to accommodate; breach of OHS program
Barton was terminated, allegedly for cause, after his subordinates breached company health and safety policies to
help a disabled employee access the second floor of a Rona store to attend a training session. Even though Barton did
not participate, the evidence suggested that he was aware of the plan and did not prevent its execution. Barton sued
for wrongful dismissal and was awarded 10 months’ pay in lieu of notice. The Ontario Court disagreed with the
employer’s zero-tolerance health and safety policy, suggesting that employers should compare the proportionality of
the misconduct with the sanction imposed and beware of the “zero tolerance” approach.

These are interesting cases to review in and of themselves – but the greater impact on employers and Sr Managers charged with ensuring business entities are viable and profitable remains with the neglect in understanding the real impact of disability on the workplace. Read more in our Blogs about the AODA, Accessibility and the negative impact on businesses in ignoring ADA, AODA and accessibility in the workplace.

JESleeth and the Accessible Design Team at OPC