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The Duty to Accommodate Child Care Responsibilities

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by Michael V. Coyle. JD*

Under federal and provincial Human Rights law it can be illegal for an employee to refuse to an employee’s reasonable request for child or elder care accommodation.

Two very recent cases from the Federal Court of Canada illustrate the current state of the evolving law of “family status” claims.

In one case, a freight train conductor was fired by Canadian National Railway when she refused a temporary work assignment in another province (required under the Collective Agreement) because she could not find anyone to look after her two and six year-old children after normal working hours while she was away. The children’s father also worked for CN as a locomotive engineer and he was away working for periods of 14 to 24 hours.

In the other case, the Canadian Border Service Agency refused the employee’s request for fixed shifts so she could arrange for the care of her two young children upon her return from maternity leave. Her husband also worked for CBSA on rotating 24/7 shifts. CBSA had an unwritten policy that fixed shifts were reserved for part-time workers and told this woman that she would have to give up her full-time status if she wanted fixed shifts, with the resulting loss of pension and other benefits.

Each case went before the Canadian Human Rights Tribunal and in each case the Tribunal held that the employer had illegally discriminated against these women on the basis of their “family status”. The Tribunal found in both cases that the employer had failed to discharge its duty to accommodate.

In the CN case, the Tribunal ordered the worker’s reinstatement without loss of seniority with reduced compensation for her lost earnings (due to failure to mitigate), plus damages for pain and suffering and the employer’s “wilful or reckless conduct” totalling $35,000, plus interest. CN was ordered to amend its policies and provide corrective training for its managers.

In the CBSA case, the Tribunal ordered the employer to cease its discriminatory practices and to compensate the employee for her lost wages and benefits, including overtime and pension contributions. That Tribunal also ordered CBSA to pay damages amounting to $35,000 plus interest at the Canada Savings Bond rate.

Canadian National and the federal government each sought judicial review of their respective cases before the Federal Court of Canada. The Court agreed with the Tribunal in separate decisions (with minor variations in CBSA case) written by the same judge and released a day apart in late January and early February, 2013.

Significantly, the Federal Court judge rejected the more stringent test to be applied to employee claims under family status that the British Columbia Court of Appeal used in the “Campbell River” case (2004) under which the employee is required to prove that there has been a “serious interference with parental or other family obligations”, which the BC appeal court said would usually be “difficult to make out”. In these cases the Federal Court opted for a more moderate test that requires the employee to prove simply that she had taken appropriate steps “to reconcile family obligations with work obligations”.

It is of interest that both of these cases involved unionized employees under Collective Agreements. Presumably, the Union could have proceeded to advance these family status claims before a grievance arbitrator but the employees involved (apparently) chose to go to the Canadian Human Rights Tribunal. It is impossible to know from the Court decisions what role the unions involved played in the proceedings, if any. But unions cannot  be mere bystanders in these cases. Unions not only owe a duty of fair representation to their members but they also have a positive legal duty to oppose discrimination in all forms in the workplace. In the CBSA case, the federal government made a formal motion to add the Union as a party before the Tribunal but that motion was opposed by both the Human Rights Commission and the complainant and the motion was dismissed by the Tribunal in separate reasons.

Of course, it makes no difference from a legal standpoint whether the affected employee is in a union or not. These rulings apply with equal force to non-union employees.

While both of these cases dealt with child care situations, it must be noted that the principles involved would apply equally in “elder care” situations as well. Elder care is, of course, of increasing concern to many families.

It is unlikely that these two recent Federal Court rulings will be the last word on the subject of family status claims. These rulings may be appealed, of course, and if they are not, other cases likely will be. Eventually, the Supreme Court of Canada will have to provide guidance on this very significant issue.

In the meantime, lawyers, tribunals, arbitrators and judges will struggle on a case-by-case basis to determine when the duty to accommodate is triggered by child (or elder) care obligations.

The message to employers, large and small, is quite clear: the law recognizes a duty to accommodate your employees’ family obligations. While the exact point at which that duty might be triggered may still be in some doubt, it would be foolish (not to mention potentially very expensive) to ignore your employees’ family care obligations. This is a very specialized area of law and employers (and employees) would be wise to consult with knowledgeable counsel should these issues arise in your workplace.

*Michael Coyle is an experienced employment-labour relations lawyer and a neutral mediator and arbitrator based in Kentville, Nova Scotia. Information provided in this article is meant for general interest only and is not a substitute for legal advice about your own situation. Michael can be reached by email at michael@mvc-private-law.ca  For more information and tips on employment and labour law issues, visit his website at www.michaelcoyle.ca

©Michael V. Coyle, 2013