Home Accommodation Octapharma ordered to pay $105K after terminating worker who needed accommodation to care for cancer-stricken mom

Octapharma ordered to pay $105K after terminating worker who needed accommodation to care for cancer-stricken mom

by HR Law Canada

A sales rep who was terminated without cause because she needed accommodation to care for her cancer-stricken mother during the COVID-19 pandemic has been awarded more than $100,000 by the Human Rights Tribunal of Ontario.

The rep, L.C., alleged discrimination based on family status by her employer, Octapharma Canada Inc. The company, though, took the position that she made a decision to work from home — against a directive to return to the office — and that her decision was unilateral and unrelated to family status.

The tribunal upheld her application, stating that Octapharma failed in its procedural and substantive duty to accommodate her family status and engaged in reprisal following her accommodation requests.

The Tribunal ordered Octapharma to pay L.C. a total of $104,806.88 in damages and compensation for lost wages, benefits, and bonuses.

Background

L.C. began working for Octapharma in 2011 as a national sales rep. When her mother underwent cancer treatment, she sought flexibility in her schedule to care for her — a situation that was exacerbated by the pandemic. This led to her termination without cause on Dec. 3, 2020.

The tribunal’s decision highlighted a series of events beginning in August 2020, when L.C. first requested accommodation to care for her mother. Despite initially allowing her to work flexibly, Octapharma later insisted she return to the office full-time, a move that the rep argued was incompatible with her caregiving responsibilities.

Evidence, testimony and recorded conversations

The Tribunal heard evidence over several days, including oral testimonies from L.C., her family members, and Octapharma’s general manager.

Crucially, L.C.’s recorded meeting with her immediate supervisor and the general manager provided key insights into the company’s stance on her accommodation requests.

The GM’s comments, which included, “You throw something reasonable, I will accept it. If you leave it open ended, you know you’re forcing my hand. I cannot accept it,” were noted by the Tribunal as indicative of the company’s unwillingness to engage in a meaningful accommodation process.

The GM also noted that L.C. was “one of the last three original employees and loyal and all the rest of it.”

“I’m asking that loyalty to reflect in solving a business problem,” the GM said to L.C. “I didn’t hear any word on how you are going to solve the business problem. All I’m hearing is, ‘I don’t want to come into the office because I got a number of things to care of.'”

Towards the end of the call, the GM said a deal that was made — taking “two hours off here and there during the week” — was still there. The company wanted her to work in the office the rest of the time because of “business requirements.”

L.C. testified that her mother broke her wrist in mid-October and she had to move in with her as a result. This meant she needed help with daily tasks like eating, dressing, and taking pain medication. The change to full-time office attendance would mean additional driving time from the family home in Woodbridge, Ont., to downtown Toronto — at least twice per day, she said.

According to Google Maps, that’s about a 45-minute drive each way, not counting for traffic volumes depending on the time of day.

Oncologist testimony

An oncologist testified that chemotherapy and radiation can potentially have “immune-suppressive effects.” He was concerned about L.C.’s mother catching COVID-19 because she was elderly and was more susceptible to the virus.

He further stated that “objectively, while her lab results did not show a significant change in key blood counts, there was a decline in white blood cell levels that could, in theory, increase the risk of contracting COVID-19.”

The doctor stated that in general for anyone undergoing cancer treatments during the pandemic, they needed to “maintain social distance, avoid crowds, use all personal protective equipment, and handwash.” 

Analysis and findings

The tribunal found that L.C. had established a prima facie case of discrimination. It noted that the employer’s change in work location significantly impacted her ability to fulfill her caregiving duties, which were exacerbated by her mother’s increased medical needs and the heightened risk of COVID-19.

Despite Octapharma’s contention that alternative caregivers could have been arranged, the tribunal sided with L.C., who testified that community support options were insufficient and posed additional health risks to her mother.

The tribunal also criticized Octapharma’s failure to continue communication with L.C. after her accommodation request, viewing it as a lack of engagement in the accommodation process. The company stopped communicating with her from Oct. 27, 2020, until the termination letter on Dec. 3, 2020.

“They did not provide any explanation for the reduced communication with the applicant from either the GM or the applicant’s immediate supervisor,” it said.

Reprisal claim

The tribunal supported L.C.’s claim of reprisal, citing the deterioration in her working relationship with Octapharma following her accommodation requests.

Changes in her work conditions, reduced communication from her supervisors, and her eventual termination were seen as retaliatory actions.

Tribunal orders

The Tribunal ordered Octapharma to pay Cosentino $25,000 for injury to dignity, feelings, and self-respect, along with $79,806.88 for lost wages, benefits, and bonuses.

This included compensation for a profit-sharing bonus and an annual performance bonus, recognizing the financial impact of the discriminatory termination.

Type of CompensationAmount
General Damages for Injury to Dignity, Feelings, and Self-Respect$25,000
Loss of Salary (January 30 to February 15, 2021)$7,577.07
Loss of Allowances and Benefits (December 4, 2020 to February 15, 2021)$6,621.66
Three-Year Profit-Sharing Bonus$51,996.15
Annual Performance Bonus$13,612
Total$104,806.88
Source: Human Rights Tribunal of Ontario

For more information, see Cosentino v. Octapharma Canada Inc., 2024 HRTO 860 (CanLII).

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