AHRC Says Context Needed In Accommodation Case

Rahul Vashisht v. CitiFinancial Canada, Inc., 2023 AHRC 44 (Ahanonu) is a recent Alberta Human Rights tribunal decision whereby the Complainant argued the Respondent employer, CitiFinancial Canada (“CitiFinancial”) discriminated against him on the grounds of mental disability and family status, contrary to section 7 of the Alberta Human Rights Act when it failed to accommodate him, in light of his increased childcare demands.

The AHRC determined that CitiFinancial discriminated against the Complainant on the grounds of family status.  However, the Complainant failed to collaboratively work with CitiFinancial in accommodating his needs.  Consequently, the complaint was dismissed.

Facts

The following are the pertinent facts found by the Alberta Human Rights Tribunal:

• The complainant commenced his full-time employment with CitiFinancial in or about February 2006
• The Complainant went on leave for medical reasons from February to September 2014. The Complainant suffered from panic attacks and anxiety (the “First Leave”)
• The Complainant was diagnosed with panic disorder during the First Leave
• In June 2014, the Complainant advised CitiFinancial via email, that he was medically cleared to return to work, however, he was going on parental leave, as his newborn daughter was born prematurely
• The Complainant’s childcare obligations increased as a result of his newborn daughter
• CitiFinancial granted the Complainants parental leave request
• The Complainant’s expected return to work date was September 8, 2014
• Upon the Complainant’s return, he was advised that he would temporarily be working both physically in a branch and remotely
• As a result of the Complainant’s increased childcare obligations, he asked CitiFinancial if he could work part-time hours
• CitiFinancial denied the Complainants request for “business reasons”
• In May 2015, the Complainant went on a second medical leave (the “Second Leave”)
• Prior to the Second Leave, the Complainant alleged that he asked CitiFinancial to do the following:
  • Allow him to work part-time, so he could meet his childcare obligations; or
  • Allow him to work solely from home, so he would be able to meet his childcare obligations; or
  • Allow him to physically work from a local branch
  • (altogether, the “Request”).
• In response to the Request, CitiFinancial proposed a change to the Complainants schedule, whereby he could work from 9:00 am to 2:00 pm followed by a 5:00 pm to 8:00 pm shift (the “Proposal”)
• The Complainant did not respond to the Proposal
• The Complainant was terminated in or about October 2015, CitiFinancial did not provide reasons for the termination
• During the Hearing, the Complainant called one witness – his therapist- and testified on his own behalf
• CitiFinancial called a single witness. However, it failed to call 3 material witnesses, which were the CitiFinancial employees the Complainant was in contact with regarding his disability and Request
• The Director argued that the Tribunal should draw an adverse interest against CitiFinancial, as it failed to call material witnesses
• The Director also argued that CitiFinancial had a duty to inquire with the Complainant about his mental health, as CitiFinancial was “aware or reasonably ought to have been aware that there may be a relationship between a disability and someone’s job performance”

Analysis / Conclusion

The Tribunal refused to draw an adverse interest against CitiFinancial for failing to call material witnesses in this case, because although there was no witness challenging some of the Complainant’s evidence, the Tribunal had some concerns with his evidence.

The Tribunal did not agree with the Director that CitiFinancial had a duty to inquire and failed to do so, because the Complainant initially brought his mental illness to the attention of CitiFinancial over a year before the alleged discrimination occurred. Furthermore, the Tribunal held that the Complainant’s reference to a long-term sickness was insufficient to trigger an employer’s legal duty to inquire.

The Tribunal determined that CitiFinancial did not discriminate against the Complainant on the grounds of mental disability, as the alleged discrimination occurred over a year prior to when the complaint was filed.

The Tribunal also held that CitiFinancial discriminated against the Complainant on the grounds of family status, however, the complaint was dismissed for following reasons:

• The Complainant’s credibility was in doubt for the following reasons:
• The evidence provided during his testimony was contradictory. The Complainant testified that he had experienced an increase in stress and anxiety as a result of his childcare obligations and remote work, yet the Request included an option where the Complainant asked to work only remotely;
• The Request also included an option whereby the Complaint sought to work from a branch near his home;
• The Complainant also testified that the lack of face-to-face interactions, caused by working remotely led to stress which impacted his performance; and
• The Complainant failed to corroborate portions of his testimony with documented evidence ,especially since the parties communicated via email.

The Complainant failed to demonstrate how part-time hours would allow him to meet his childcare needs. Had the Complainant provided particulars and the context surrounding the Request altogether, it would have aided the Tribunal in analyzing the reasonableness of the Proposal.

The law imposes a duty of collaboration on the complainant. In the present circumstances, the Complainant failed to collaborate with CitiFinancial when he failed to respond to the Proposal. For CitiFinancial to discharge its legal duty to accommodate, it was required to engage the Complainant, for the purpose of determining options to accommodate the Request, which it did.

The Proposal was reasonable and demonstrated its willingness to accommodate the Complainant.

The Complainant’s failure to respond to the Proposal prevented the parties from reaching a resolution.

The Tribunal also noted that employers are not responsible for determining a plan for their employees’ childcare needs.

My Take

This case is similar to my an earlier blog post of mine, where the Alberta Human Rights Tribunal held that accommodation requires both the complainant and respondent to work collaboratively.

The present case is a reminder that in determining whether an employer has accommodated an employee, the Tribunal will assess the situation and consider the complainant’s conduct. If the complainant fails to provide particulars and/or the context surrounding its accommodation request, while also failing to partake in discussions surrounding accommodation, it could be detrimental to one’s human rights complaint.

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