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By Raquel Chisholm, CAE

Courts and Arbitrators Have Sought to Strike a Balance between family and work

All employees who have children will, at some point, experience a conflict between their work-related obligations and their family-related demands. While “family status” is recognized as a protected ground under most provincial human rights laws, as well as the Canadian Human Rights Act, there has been a degree of uncertainty around the extent to which employers are required to accommodate employees’ family-related needs, whether by revising work schedules or being flexible in applying other work rules or policies.

Two recent Federal Court of Appeal decisions have made it clear that employers must be open to considering such requests based on an employee’s parental obligations and, where required, may need to provide accommodation. Employers can take some comfort in the fact that these decisions seek to balance the interests of employers and employees. The court has made it clear that there are limits to what an employee is legally entitled to expect from his or her employer.

The Johnstone and Seeley Cases

The two cases considered by the Federal Court of Appeal both involved employees who were the parents of young children. Both employee ran into difficulties making childcare arrangements to meet the demands of their employers and requested some accommodation as a result. In Johnstone, an employee who worked for the Canada Border Services Agency requested a change in her shift schedule (24-hour rotational shift). In Seeley, an employee of the Canadian National Railway requested to be exempted from the requirement to relocate from Jasper, Alberta to Vancouver due to a labour shortage. When their accommodation requests were denied, both employees filed complaints with the Canadian Human Rights Tribunal alleging that their employer’s refusal to accommodate them amounted to discrimination on the basis of “family status”. In both cases, the Tribunal found the employer’s conduct to be discriminatory, upholding the employees’ complaints.

The Federal Court of Appeal upheld the Tribunal’s rulings in both cases, confirming that a failure by an employer to accommodate an employee on the basis of “family status” constitutes discrimination within the meaning of the Canadian Human Rights Act.

What an Employee Must Demonstrate – the “Johnstone criteria”

Prior to these two recent Federal Court of Appeal decisions, there had been disagreement in the decided cases as to the threshold required to make out a claim of discrimination on the basis of family status. According to the Federal Court of Appeal, an employee who is asking to be accommodated on the basis of their family-related needs must demonstrate the following:

  1. that a child is under his or her care and supervision;
  2. that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
  3. that the parent/employee has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
  4. that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligations.

The Federal Court of Appeal has confirmed that the types of parental obligations that must be accommodated are those that are essential and engage the individual’s legal responsibility. The protection of human rights legislation is not extended to less substantial obligations arising from personal family choices. Similarly, the decisions make it clear that the employee must make reasonable attempts to self-accommodate by exploring alternative solutions before seeking an accommodation from their employer.

The Johnstone Criteria Applied

Despite being a decision of the Federal Court of Appeal, the Johnstone criteria have been applied in a number of recent court, arbitral and human rights tribunal decisions under different human rights legislation across the country. In order to understand how the Johnstone “test” is to be applied, we have summarized the facts and findings in some of these case

  • A member of the Board of Directors of Niagara Falls Hydro complained about a change in the time of the Board meetings on the basis that it conflicted with her need to pick her daughter up from private school and drive her to her swimming lessons. The Human Rights Tribunal of Ontario (HRTO) found that the Board’s failure to accommodate in these circumstances was not contrary to the Act since swimming lessons are a matter of personal choice and not a legal obligation.
  • The Union representing a college instructor filed a grievance alleging that the College’s denial of the employee’s request for personal leave with pay to stay home with his two sick children was discriminatory and contravened both the collective agreement and the Ontario Human Rights Code. The grievance was denied on the ground that the employee could have chosen to take unpaid leave or to use vacation time or lieu time to cover the day he needed to stay home with his two sick children. The duty to accommodate did not require the employer to exercise its discretion to grant him a day of paid personal leave.
  • An employee who was demoted and had her work schedule significantly changed following her return from parental leave asked to be returned to her previous position and schedule because the new schedule was incompatible with her childcare obligations. The employer denied her accommodation request and terminated her employment alleging it had cause to do so. The employee brought a civil action for wrongful dismissal. In upholding her claim the Court applied the Johnstone criteria and found that there was discrimination on the basis of family status. The Court awarded her 12 months reasonable notice in wrongful dismissal damages, and an additional $20,000 for human rights damages, in part as a deterrent to other employers who are unwilling to accommodate childcare arrangements without legitimate, justifiable grounds for being unable to do so.
  • An arbitrator upheld a grievance filed on behalf of a single mother, who was working as a first-year apprentice welder for a company in the Fort McMurray area of Alberta. The grievor, who had two young children, alleged that the employer had failed to accommodate her when it denied her request to be allowed to work straight day shifts (rather than rotating day and night shifts). She alleged that this was discriminatory as her request was based on the difficulties she encountered in arranging childcare during the night shift (and the additional cost of hiring someone to look after her children while she slept during the day). The arbitrator concluded that the employer had failed to show that it could not have accommodated the grievor (particularly given that she had found someone who was willing to work straight night shifts in order to assist her). 

What Employers Must Do

The recent decisions of the Federal Court of Appeal in Johnstone and Seeley make it clear that employers across Canada are required to consider all employee requests for accommodation based on childcare needs. Requests must be considered on a case-by-case, individual basis, taking into account the employee’s specific circumstances and any efforts the parent/employee has made to seek out alternative solutions. Whether or not some form of accommodation must be granted will depend upon a number of factors, including the size of the employer and the extent to which the nature of the workplace allows for flexibility.

It is advisable that employers adopt clear policies that set out how such requests will be addressed and that ensure that all requests will be dealt with in a consistent manner.

More than anything, if an employer’s response to such a request is challenged, it will be important for employers to be able to demonstrate a willingness to be flexible and to examine potential avenues for assisting employees whose circumstances warrant it.

PULL QUOTES

Employers across Canada are required to consider all employee requests for accommodation based on childcare needs.

The types of parental obligations that must be accommodated are those that are essential and engage the individual’s legal responsibility.