To what extent does an employer have to accommodate an employee’s other work and personal commitments when those commitments are unrelated to grounds protected under human rights legislation? A recent Ontario decision sheds light on an employer’s ability to dictate an employee’s work schedule in these circumstances.
In this case, the employee was a server who worked part-time for the employer. The employee was absent for over 20% of her scheduled shifts in a one-year period, and the employer terminated her employment in accordance with its attendance policy. The reasons for the employee’s absenteeism were two-fold. First, she worked full-time, which prevented her from attending her shifts when they started at 4:30 p.m.. Second, she was taking a photography course on the weekends, which prevented her from attending all of her scheduled weekend shifts. She asked the employer to accommodate each of these commitments by changing her shift schedule, but the employer refused.
The arbitrator upheld the termination. The Arbitrator found that the collective agreement entitled the employer to set the hours of operation and determine the shift schedule. Further, the arbitrator found that, “nothing in the collective agreement requires the employer to accommodate an employee’s outside interests or to accommodate an employee’s other employment.”
While similar cases will depend on the language of the particular collective agreement, this case demonstrates that an employer can be successful in enforcing its attendance management policy, assuming that the employer’s human rights obligations are not engaged.