Tag Archives: duty of fair representation

The Duty to Accommodate Child Care Responsibilities


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 [email protected]  For more information and tips on employment and labour law issues, visit his website at www.michaelcoyle.ca

©Michael V. Coyle, 2013

Employment Basics – What Every Employer and Employee Should Know

by Michael V. Coyle, JD*

Every employee in Nova Scotia has a contract with their employer – whether they work full time, part time, seasonal or casual. The contract exists whether they have been working there 10 years or 10 minutes. In relatively rare cases the contract might be in writing, but in the vast majority of cases the contract of employment is unwritten. But it is still a contract in the eyes of the law.

The essence of the contract of employment is that the employee will faithfully carry out their assigned duties and the employer will pay the employee an agreed wage or salary and benefits. The contract continues until it is lawfully terminated by one party or the other.

In theory, an employer is free to terminate the contract at any time.

If the employee has breached the contract by failing to live up to his/her end of the bargain as a faithful employee that is called a “termination for just cause”. In plain language, the employee is “fired”. In that case, the employer owes the employee nothing except wages and benefits due to the date of firing.

But if the employer fires the employee without “just cause”, the employer must pay the employee an amount of money in lieu of the “reasonable notice” that they should have received from the employer. If the employer refuses to pay, the employee can sue the employer for wrongful dismissal. Generally, the employer’s financial position is not “just cause” for dismissal, nor is a decision by the employer to “restructure” or “down-size” their operation.

The determination of the amount that the employer must pay for wrongfully dismissing an employee is based on a variety of factors. These include the employee’s age, education, training and family circumstances, the time that it would likely take to find comparable employment in that business, trade or industry in that geographic area, the length of time the employee has worked for the employer and the kind of job or position they held with the employer. On the other hand, a unjustly dismissed employee has a legal obligation to look for work and take a comparable job if it is offered.

If the employer tries to avoid its obligations under the contract of employment by forcing the employee to quit, for example, by changing the employee’s fundamental terms of employment without their agreement, that might be a “constructive dismissal”. In that case, even though the employee quit, they can still sue the employer for wrongful dismissal.

Employers cannot discriminate against employees – before and after hiring – on  any of the grounds set out in the Human Rights Act. They have a legal duty to accommodate employees who are sick or who have disabilities. Employees are forbidden from harassing other employees on any of the prohibited grounds of discrimination under the Human Rights Act.

The Occupational Health and Safety Act prohibits “workplace violence”. That term now includes workplace harassment and is broader than the definition used under the Human Rights Act in that it can include meanness and nastiness from both supervisors and other employees.

Employers and employees must of course abide by the Labour Standards Code and, generally, employers have an obligation to continue additional benefits they have customarily provided to their employees beyond the Labour Standards Code. The Labour Standards Code provides that, once an employee has worked for an employer for 10 years, they can only be dismissed for “just cause”. A 10 year employee who has been fired without just cause can seek reinstatement to their former position, with back pay for lost wages, under the Labour Standards Code.

A “lay off” is a reduction in the workforce due to a shortage of work caused by the employer’s inability, in good faith, to secure orders or work or other circumstances (like fire, natural disaster, strikes or lockouts by suppliers or key customers, etc.) that are beyond the employer’s control. A “lay off” should not be confused with a “termination” or “dismissal”. Laid off employees are not “fired” and they have a contractual right to be recalled to work once the reason for the “lay off” has gone away. An employer who hires a new employee to replace one who has been “laid off” risks being sued for wrongful dismissal.

The law has changed in recent years concerning probationary employees. A judge of the Supreme Court of Nova Scotia recently summed it up this way: “The era when an employer could arbitrarily terminate a probationary employee without obligation or explanation is past.” In most cases, probationary employees can now only be dismissed for documented “just cause”, like regular employees.

In a unionized workplace, the employer and the Union bargain for terms of employment which are set out in the Collective Agreement. Generally speaking, a unionized employee cannot sue the employer for breach of the Collective Agreement, but instead must go through the Union by way of the grievance procedure in the Collective Agreement to seek justice. Unions, in turn, owe the employees they represent a “duty of fair representation” under the Trade Union Act.

If you are an employer or an employee and an employment law issue arises you should consult with a knowledgeable employment lawyer before taking any actions. Employment law is a specialized field. Most employment law cases can be resolved out of court with the help of experienced legal counsel.


*Michael Coyle is a Chartered Professional in Human Resources and a retired employment and labour lawyer based in Kentville, Nova Scotia. Information expressed in this article is meant for general interest only and is not a substitute for professional advice about your own situation. Michael can be reached by email at michael@michaelcoyle,ca  For more information and tips on employment and labour law issues, visit his website at www.michaelcoyle.ca


©Michael V. Coyle, 2012