Rongits v. Perry, 2014 HRTO 1404

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Xavier Rongits

Applicant

-and-

Ron Perry

Respondent

A N D B E T W E E N:

Hannah Marie Rongits

Applicant

-and-

Ron Perry

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: September 22, 2014

Citation: 2014 HRTO 1404

Indexed as: Rongits v. Perry

APPEARANCES

Xavier Rongits and Hannah Marie Rongits, Applicants

Bradley Thomson, Representative

Ron Perry, Respondent

Self-represented

1These are two Applications dated October 16 and 18, 2013, alleging discrimination with respect to employment because of family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In brief, both applicants are young persons who were employed by a local McDonald’s restaurant franchise in Dunnville owned by the respondent. They were absent from employment during the summer months in 2013 in order to spend time with their father, who is separated from their mother and lives in Elliott Lake. Upon their return, they were told that they would no longer be given work hours at the restaurant and would need to re-apply for employment in the following spring. This is the basis upon which they allege discrimination because of family status.

3By Case Assessment Direction dated January 24, 2014, the Tribunal directed that a summary hearing be held in these matters, in order to determine whether these Applications have a reasonable prospect of success. The summary hearing was held by teleconference on June 26, 2014, and I heard oral submissions from a family friend who was acting as the applicants’ representative as well as from the respondent, who was self-represented.

4The applicants’ situation is somewhat unusual and unfortunate. The applicants’ parents were separated when the applicants were very young children. Originally, the applicants primarily resided with their mother in Dunnville but would spend summers with their father who had moved to Elliott Lake. In later years, the applicants’ mother became ill and now resides in a nursing home in the Dunnville area, and the applicants reside with their grandmother. The applicants both continued to spend summers with their father, which was described as their only opportunity to see him.

5The applicant Hannah Marie Rongits was hired to work part-time hours at the respondent’s restaurant in March 2011 and the applicant Xavier Rongits was hired to work part-time hours there in April 2012. Both were attending high school at the time. Hannah Marie Rongits is now 19 years old and graduated from high school in June 2013, and Xavier Rongits is now 18 years old and graduated from high school in June 2014.

6The Applications state that in June 2012, both applicants notified management at the respondent’s restaurant that they needed a leave of absence over the summer to visit their father in Elliott Lake, and this request was granted. The Applications state that when the applicants returned to Dunnville in late August 2012, there were no issues and they both returned to work and received their normal hours of employment. Both applicants continued to work at the respondent’s restaurant from then until June 2013.

7In June 2013, the Applications state that the applicants again requested leave over the summer to visit with their father, and this was granted without question. Once again, they returned to Dunnville in the latter part of August 2013, and both attended at the restaurant to inquire about upcoming shifts. They state that they were told by restaurant management that they both needed to attend a meeting prior to getting any shifts. While they were told that they would be contacted about this meeting, they state that this did not happen. They state that they then returned to the workplace on September 2, 2013, to further inquire about their employment status, and were told that the respondent was not pleased that they had not been available to work during the summer and did not want them back as employees. They state that they were told that if they wanted to work again at the restaurant, they would need to re-apply and be re-trained, and would lose their ratings and their raises. They state that they were advised that if they wanted further discussion with the respondent on this matter, they were to write him a letter, which they did on September 12, 2013.

8The applicants state that they were contacted and told to attend a meeting on October 2, 2013, to discuss their employment status, which they did. A further meeting was held on October 7, 2013. At this latter meeting, the applicants state that they were told that if they wanted further employment, they could return to work at the restaurant in May 2014. They state that they were told that because they were not available to work in the summer of 2013, it would be unfair to give hours to the applicants because employees who had worked during the summer deserved them more than the applicants. The applicants state that at the time of the October 7, 2013 meeting, there were four new employees being trained, and between September 2013 and the time the Applications were filed, the respondent had hired at least six more part-time employees.

9The respondent states that he had no idea of the applicants’ family situation at the time these decisions were made. He states that when the applicants took the summer off in 2012, no one had any idea why they did so. This is disputed by the applicants, who state that they informed management of the respondent restaurant about their situation and why they were seeking these leaves. The respondent states that the restaurant has a staff of over 60 employees, and operates a seasonal business with increased business needs in the summer months. As a result, he states that during the winter months, he has a hard time distributing work hours amongst his staff. He expressed his view that it was not fair for the applicants to take the summer off, which is the restaurant’s busiest season, and then take hours away from employees who had worked all summer. He states that the applicants were told that they could re-apply for employment in the spring of 2014, and they were happy with that. This is disputed by the applicants. There is no dispute that neither applicant in fact re-applied to work at the respondent’s restaurant.

10The issue in this case is whether the applicants’ desire to spend time with their father over the summer can properly be regarded as a Code-related need that requires an employer to accommodate their absence from work and give them back their positions when they return. Alternatively, to the extent that the fact that they took this leave to visit their father over the summer was a factor in the decision not to continue to give them work hours and require them to re-apply, the issue is whether this properly can be regarded as discrimination because of “family status” under the Code.

11There is no doubt that the situation in this case goes well beyond any protection that previously has been provided to employees on the ground of family status. However, I note that the jurisprudence regarding the ground of family status and what needs related to family status must be accommodated by an employer is developing in recent years, and is not yet settled.

12In particular, I note the following unique factors of these cases that may need to be considered in relation to any final determination as to whether the applicants’ rights under the Code have been violated: the young age of the applicants; the distance from where the applicants resided to their father’s location; the longstanding arrangement whereby these children would see their father over the summer; whether or not this arrangement was the subject of any separation agreement between their parents; the health of the applicants’ mother; the extent to which the summer months were the only real opportunity for the applicants to see their father; the extent to which the respondent or his restaurant managers were aware of the applicants’ situation and needs; and the extent of any consideration that need be given to those employees who continued to work at the restaurant over the summer months.

13Given these considerations and the developing state of the law, it is my view that this is not the kind of case that is appropriately disposed of through the summary hearing process, in the absence of a full evidentiary record and submissions at an in-person hearing. Accordingly, I decline to dismiss these Applications at this stage as having no reasonable prospect of success, and direct that these Applications proceed further in the Tribunal’s process.

14The next step in the Tribunal’s process is for the respondent to file his Response (Form 2). The respondent is directed to do so within 35 calendar days of the date of this Interim Decision, after which the applicants will have an opportunity to file any Reply in accordance with the Rules. I note that both applicants have agreed to mediation. If the respondent also indicates in his Response that he agrees to mediation, then these matters will be scheduled for a joint mediation. Otherwise, these matters will proceed jointly to a hearing in accordance with this Tribunal’s process.

ORDER

15For the foregoing reasons, I hereby make the following order:

a. I decline to dismiss these Applications at this stage as having no reasonable prospect of success, and direct that these Applications proceed further in the Tribunal’s process;

b. The respondent is directed to file his Response to the Applications within 35 calendar days of the date of this Interim Decision.