The Human Rights Tribunal of Ontario dismissed a discrimination complaint from a delivery driver who claimed he was fired for requesting time off to care for his elderly mother, ruling that performance issues were the real reason behind his termination.
M.K. worked as a DZ delivery driver for Pet Science Ltd. from May to September 2019. He alleged the company failed to accommodate his family status needs and terminated his employment because he requested time off to take his mother to medical appointments.
The applicant testified he was the sole caregiver for his elderly mother, who had significant care needs and required transportation to appointments and translation during visits since she didn’t speak English. He submitted a doctor’s note confirming his mother’s language barrier and his usual attendance at her appointments.
Conflicting accounts of accommodation requests
The case centred on conflicting testimony about what M.K. told his employer about his caregiving responsibilities and accommodation needs.
M.K. testified he told his supervisor about his mother’s health issues at the start of his employment. However, he didn’t testify that he asked for specific accommodations or provided details about the care he provided. When questioned, he didn’t appear to understand the term “accommodations.”
The supervisor testified that M.K. never requested an accommodation related to his mother’s illness and didn’t make him aware of the severity of his mother’s condition or the care M.K. provided until after his termination. The company submitted text messages sent by M.K. to the supervisor on Sept. 26, 2019, after his termination, stating: “My mother was diagnosed with brest [sic] cancer and osthris [sic].”
Vacation request dispute
The central dispute involved M.K.’s request for 11 vacation days at the end of September 2019.
M.K. testified he verbally requested the days and told the supervisor they were required to care for his mother. He said the supervisor initially told him it was their busy period but eventually approved the vacation verbally and asked for a written request. After submitting the form, the supervisor returned it and told him he was terminated.
The supervisor provided a different account. He testified that one week after M.K. completed probation, M.K. approached him for a vacation request form, filled it out immediately and dropped it on his desk. When the supervisor advised the dates were in the middle of show season and asked why he needed the time off, M.K.’s reply was “I just need it.”
The supervisor approved the vacation but told M.K. he wouldn’t be paid for the days since he hadn’t accrued enough vacation time. M.K. became upset and said if he wasn’t going to be paid, he wouldn’t take the vacation. According to the supervisor’s uncontested testimony, M.K. later confirmed he wanted to cancel his vacation request.
Performance issues documented
The tribunal heard extensive evidence about M.K.’s performance problems during his short employment period.
M.K. was hired through a recruitment company with a three-month guarantee. As he neared the end of probation, his performance declined. The company reported to the recruitment agency that M.K. was missing deliveries, failing training and having arguments with customers about his service.
The respondent entered internal performance management forms issued to M.K. for infractions dated Aug. 8, Aug. 30 and Sept. 4, 2019, all signed by him. While M.K. initially denied signing the forms, he later acknowledged his signature but insisted there were no performance issues.
The supervisor testified the company continued receiving customer complaints about M.K.’s performance and attitude between his vacation request and termination. Despite coaching and retraining, his performance didn’t improve, leading to the termination decision.
Tribunal’s analysis
The tribunal applied the test from Misetich v. Value Village Stores Inc. for establishing family status discrimination in employment. Under this framework, employees must establish more than a negative impact on family needs – the impact must result in real disadvantage to the parent-child relationship and responsibilities.
The adjudicator found M.K. hadn’t shown he made any attempt to find alternative transportation or another person to attend appointments with his mother. “There was no evidence of any attempt on his part to find an alternative solution to taking time off work to take his mother to medical appointments,” the tribunal noted.
The tribunal found the supervisor was aware M.K.’s mother was ill but concluded M.K. didn’t communicate the extent of his care responsibilities until after he refused the approved, unpaid vacation.
Accommodation efforts recognized
The tribunal found the respondent had accommodated M.K. by providing time off for medical appointments and approving his vacation request despite it falling during a busy period. The supervisor showed willingness to alter schedules, and the human resources manager testified the company routinely accommodated medical appointments even when employees didn’t provide required two weeks’ notice.
The tribunal emphasized that accommodation is a shared responsibility, requiring employees to communicate their needs and work with employers to find reasonable solutions.
Ruling
The tribunal concluded M.K.’s employment was terminated because of performance issues during his employment and that his family status needs weren’t a factor in the termination decision.
“Taking into consideration all of the above, I find that the applicant has not established that the respondent discriminated against them based on his family status,” the adjudicator wrote.
The tribunal dismissed the application, noting the respondent provided extensive evidence of performance problems during M.K.’s short employment period and had already negotiated an extension to the recruitment guarantee period due to these issues.
For more information, see Kerceli v. Pet Science Ltd., 2025 HRTO 1424 (CanLII).
