Undue Hardship: The Limit of Accommodation

In a previous blog post, we looked at the principles of accommodation, namely: dignity, individualization, integration, and full participation. In this post we will explore the limits of accommodation.

Employment Equity

Employment equity is essential for any business to remain competitive in today’s modern, global economy. Fostering an equitable workplace will allow you to take advantage of the top skills and talents of all workers.

Equitable treatment does not necessarily mean equal or the same. In order to create an equitable work environment, an employer may need to treat some employees differently in order to accommodate their unique needs and give them fair access to employment opportunities.

For example, having only stairs into your building does treat everyone equal, but it is not equitable. People who require a mobility device such as a wheelchair do not have equal access to a building without a ramp.

The Duty to Accommodate

Many workers will, at one time or another in their careers find themselves in need of an accommodation and, as an employer, it is your duty to accommodate their needs to ensure they have equal opportunities for, access to, and benefits from employment.

There are many reasons why an employer may need offer an employee accommodation(s) in the workplace. For example, you may need to accommodate an employee’s health, caregiver responsibilities or pregnancy with modified facilities, job duties, training, or even hours or location of work.

The Limits of Accommodation

While there are many accommodations most any employer would be willing to implement (installing a wheelchair ramp, allowing an employee to work from home if their child is sick for example), there are also times when an employee’s accommodation needs may seem untenable for even the most generous and empathetic employer. What then, are the limits of an employer’s duty to accommodate?

Undue Hardship

In the event that an employer finds accommodating the needs of an individual untenable for the continued reasonable operation or function of their business, they must demonstrate that they have attempted to accommodate to the point of undue hardship.

Factors in determining undue hardship include: cost, outside sources of funding, as well as health and safety requirements. According to the Ontario Human Rights Commission, “evidence needed to prove undue hardship must be objective, real, direct, and, in the case of cost, quantifiable.”

In most situations, this means an employer must demonstrate that there is a specific financial cost directly related to the necessary accommodation and that this cost is unsustainable for the employer’s business.

If you believe that providing an accommodation will cause you undue hardship, you will need to be able to present facts, data or expert opinions to support your claim. Inconvenience, customer preferences and employee morale are not considered undue hardships.

Flatt v Treasury Board (Department of Industry) (2014)

This 2014 case concerning an employee’s request for alternate work arrangements to accommodate her breastfeeding provides useful insight into the extent to which employers must accommodate their employees in order to honour their human rights obligations.

In March 2013, after a year of maternity leave, Ms. Flatt extended her leave on a without-pay basis until July of the same year. During the extended months of her maternity leave Ms. Flatt began negotiating a telework arrangement with her employer, Industry Canada that would accommodate her desire to continue breastfeeding.

Flatt initially asked to work full-time from home. Her position with the company was largely administrative but did require regular field work and the company’s policy clearly stated that, while employees were allowed to telework on occasion, or from offices closer to their homes, that teleworking was not permitted long-term.

When this request was denied, Flatt sought a telework arrangement of working from home two days per week and having a modified work schedule the other three days in which she would take two 45-minute paid breaks from the office to breastfeed her baby at his daycare.

Her employer was generally agreeable to the terms but took issue with the need to have her reach 37.5 hours of work (excluding lunch breaks and breastfeeding) and that Flatt desired this accommodation for the entirety of a year. The employer offered Flatt the options to work part time, continue her leave without pay until she had finished breastfeeding or to work from home one day per week. Ultimately Flatt and her employer were unable to come to an agreement to accommodate her breastfeeding schedule.

The Public Service Labour Relations and Employment Board found the requirement for the employee to be physically present in the workplace was not discrimination on the basis of sex or family status and that Industry Canada had fulfilled its obligation to accommodate to the point of undue hardship.

Professional Advice for Employers

An adaptive and inclusive workplace is of benefit to everyone. It allows employers to harness their employees’ full potential towards their company’s mission. However, an employer’s ability to accommodate certain employee needs do have a limit. If you are an employer in the uncomfortable position of being unable to accommodate one of your employees, you should consult with an experienced employment lawyer at KCY at LAW to review the situation and your accommodation options or lack thereof. Call us at 905-639-0999 to book your consultation today!

What is Severance Pay?

The term ‘severance pay’ is often thrown around quite loosely as a way to describe money and other benefits an employee is owed upon termination of their employment. However, severance pay refers to a specific type of payment to which only some employees are entitled.

In the event that an employee is terminated without cause, he or she is always entitled to reasonable notice or termination pay in lieu thereof. Termination pay depends on the length of an employee’s service and its statutory minimums are set out in the Employment Standards Act (ESA).

On the other hand, severance pay refers to additional pay and benefits meant to compensate long-serving employees for intangible losses (such as seniority) if they are dismissed.

Who is entitled to Severance Pay?
Not all employees are entitled to severance pay upon dismissal. In order to qualify for severance pay, you must have been with your employer for five or more years. Furthermore, your employer must have a payroll over $2.5 million or have terminated the employment of 50 or more employees within a six-month period due to the permanent closure of all or part of their business.

How is severance pay calculated?
Severance pay is equivalent to one week’s pay for each year of your employment with the dismissing employer to a maximum of 26 weeks. For example, if you earned $1,000 per week and were terminated after 7 years and 6 months of employment you would be entitled to $7,500 severance pay ($1,000 x 7.5 years = $7,500).

When do you receive severance pay?
Severance pay must be paid within seven days of the end of your employment or on the your next regular pay day, whichever comes later. It is usually paid in one lump sum but it may be paid in installments with your written permission or approval from the Ministry of Labour.

Why is it a good idea to have a lawyer review your severance package?

Unfortunately for employees, there is a good chance that the severance package you are offered will be less than your legal entitlements. Your right to reasonable notice will often entitle you to longer notice than that which the ESA provides. Seek legal counsel before accepting a severance package as you may be entitled to more than what is being offered.

In the event that your severance package falls short of your entitlements, an experienced employment lawyer can help you begin an action for wrongful dismissal. Most cases will result in a voluntary agreement with your employer. However, if an agreement cannot be reached then it will be a judge who will decide your notice period.

If you have been offered a severance package from your long-time employer, have it reviewed by the employment law experts at KCY at LAW. We can advise you of your rights and advocate on your behalf to ensure that you receive the settlement you deserve. Call 905-639-0999 to book your consultation. Or, fill out an online form here.

A Step-by-Step Guide to Progressive Discipline

Progressive Discipline

Are you concerned with one of your employee’s productivity? Does their performance leave something to be desired?

While you have every right as an employer to terminate an ‘unsatisfactory’ employee without cause – as long as you provide the appropriate notice – doing so may not be the best option for your workplace’s overall productivity.

Dismissing one employee and hiring another requires an investment of time, money, training and resources that might otherwise be saved if you instead choose to address an employee’s unsatisfactory performance with a program of progressive discipline.

What is progressive discipline?

As its name suggests, progressive discipline involves confronting and deterring poor work performance with increasingly severe consequences.

However, the goal of progressive discipline is not to punish your employee. Rather, it is to remedy poor performance and help your employee be and do their best. A progressive discipline policy gives a struggling or idle employee the opportunity to improve and keep their job.

Most employees want to be successful at their job and, with the right framework and support, can be. The need for remedial action usually arises because an employee is unaware of expectations or lacks the skills or knowledge to meet them.

Regardless of the reason for your employee’s poor performance, you should only resort to termination as a last resort after you have attempted a program of progressive discipline such as the one outlined below.

A Step-by-Step Guide to Progressive Discipline

1. Start Documenting

In the unfortunate event that your progressive discipline undertakings do not result in the necessary improvements and you decide to terminate your employee for cause, you will want to have accurate and comprehensive documentation of all the steps you took to help your employee improve and the outcome of these progressive discipline measures.

The way you apply progressive discipline before terminating an employee for cause can have significant consequences for your business should your employee file a complaint for unjust dismissal.

You should therefore keep records of all incidents, warnings, training sessions and any other performance-related interactions. A record of cumulative poor behaviour will be a strong supporting argument for just cause termination in the eyes of the law.

2. Act Early

Address poor performance before it becomes a habit. When you see areas for improvement or intervention, take the opportunity to let the employee in question know as soon as possible.

If an employee has been working a certain way for a long time without complaint, they may simply assume that what they are doing is acceptable. What’s more, if you allow unacceptable performance to continue for too long, you may be seen as condoning it. In this case, you may not be able to use the offending performance as just cause for future termination.

3. Verbally Confront Your Employee

Talk to your employee face to face. Let them know that you are dissatisfied with their performance. Be gracious and assume that their intention is not to be bad at their job. The vast majority of employees want to do right by their employer. So give them the opportunity to explain themselves. Getting to the bottom of an employee’s poor performance will help you understand any underlying issues – such as lack of training or a need for accommodation – and empower you and your employee to move forward productively.

4. Clarify Expectations and Consequences

Make sure that your employee understands what is expected of them and why. Clarify what the consequences will be if they fail to meet these expectations. These consequences may be further reprimands, suspension or even termination. This can be done verbally or in writing depending on the complexity of the situation.

Set a deadline for the employee’s improvement so that they know the timeframe in which they are working.

5. Offer Direction and Support

Sometimes, an employee just won’t know where to start. Give your employee adequate direction about how they can improve and constructive feedback on their progress. Set goals so that they know what they are aspiring to and how long they have to (re)learn the ropes.

You may also need to provide your employee with additional training. Their poor performance may be the simple result of honest ignorance or incompetence.

6. Give Your Employee a Fair Chance to Improve

Be fair. Know that some changes and improvements will take time. Give your employee reasonable time and opportunity to adjust or improve their performance.

7. Evaluate the Situation

Have things improved? Does your employee seem to be making a genuine effort to learn, change and do better? If yes: Great! Problem solved! Your progressive discipline was effective.

If things do not improve, do not improve fast enough, or your employee seems reticent to improve at all, it’s time to proceed to the next disciplinary step.

8. Issue a Written Warning

Give your employee a written warning that clearly states how they are falling short of expectations. The warning should also detail what will happen if the employee fails to meet these expectations within the prescribed timeframe. Give a signed and dated copy of this letter to your employee and keep one to put in their employment file for your records.

9. Apply Further Progressive Discipline

Depending on the nature of the poor performance, your employee’s efforts to change and other relevant factors, you may need to apply further discipline. You may decide to put your employee on probation, suspending them without pay, reassigning their work or even give them a demotion. However, exercise great care before unilaterally changing the nature of your employee’s work or you may unintentionally instigate a constructive dismissal.

10. Termination

If, after taking all the above disciplinary measures, your employee continues to fall short of your expectations, it may be time terminate them. At this point, if you decide to terminate them for cause (meaning they will not receive any termination notice or pay in lieu thereof) you will likely have the necessary cumulative cause and supporting documentation to defend your decision should your employee sue for wrongful dismissal.

Benefits of progressive discipline

Progressive discipline may seem like a great break for employees, but practicing progressive discipline has many benefits beyond second chances.

First, it provides a great learning opportunity for employers. Getting an employee’s feedback can help uncover shortcomings in training programs or needs for clarification in workplace policies or expectations that can benefit all future employees and therefore your workplace’s overall productivity and success.

Furthermore, in the event that you decide to terminate an employee for cause, having a record of the steps you took to remedy the situation and give your employee opportunities to improve will provide the supporting evidence you need to justify a for cause dismissal in court.

Lastly, progressive discipline makes for an overall healthy work environment. By being open and supportive, by demonstrating grace and showing your belief in and care for your employees, you will inspire confidence and foster a positive work environment for all.

The employment law team at KCY at LAW has the expertise to advise and assist both employers and employees in all matters concerning discipline in the workplace. To book your consultation, call 905-639-0999 or fill out our online form here.