Another one Bites the Dust: Accommodating Child Care Obligations in the Canadian Workplace Gains Further Traction for Employees

And yet another employer fights vigorously against an employee seeking accommodation of her child care needs only to lose the legal battle ….. twice.

On March 10, 2015 the Alberta Court of Queen’s Bench (“Court”) released its decision in SMS Equipment Inc. V. CEP, Local 7072015 Carswell Alta 385 upholding the Arbitrator’s order that the unionized employee (the “Grievor”) be assigned straight day shifts rather than work alternating day and night shifts to accommodate her child care responsibilities.

The Grievor in this case was a single mother of two children under the age of 6.   She was a trained welder.  She relocated from Newfoundland to Fort McMurray Alberta to pursue her career in welding.  She successfully began employment with SMS Equipment Inc. (“the Employer “) on October 11, 2012.  Her children were less than 1 years old and 5 years old at the time.  After her evening shift on November 8, 2012 she requested that she be put on straight day shifts as she was finding it “a bit difficult” take care of her children’s needs and work night shift.  The Grievor was the sole parent providing care to her children, she relied completely on third party child care to assist with her parental duties.  She had no extended family in Fort McMurray and the fathers of the children were not involved in their care.

The employer refused her request to work straight day shifts.  Notably at arbitration the Employer did not lead any evidence on how fulfilling rotating shifts was a bona fide occupational requirement nor did it lead evidence on how allowing her to work straight days would result in undue hardship to the company.  Rather it boldly asserted that she failed to “self-accommodate” meaning she should have taken steps to have the fathers be involved in the child care or somehow get financial assistance for excessive child care costs.  It also argued that to accommodate her would open the “floodgates” of child care accommodation requests.

Also an important fact is that the union, on behalf of the Grievor, found another welder employee willing to work straight night shifts to counter her straight day shift request.  The Employer still refused to accommodate her. Frankly it seems the Employer just said no without any reasoning other than it didn’t have to, in its opinion…..

In comparison the problem the Grievor faced was more than “a bit difficult”.   She obtained child care but when she worked nights it was too expensive to pay for childcare for both the night while she worked and then during the day while she slept and her kids were awake.  She had already been spending 75% of her earnings on house and childcare costs.  As a result she was looking after the children herself during the days after night shift and got “very little sleep before her next night shift”.

In the original decision the Arbitrator goes through a thorough analysis applying the Human Rights legislation to the facts and the Court then meticulously reviews it and agrees the Arbitrator was both reasonable and correct in his findings and application of the law.  Both the Arbitrator and then the Court conclude that the Employer’s rule requiring welders to work night shifts had the effect of imposing a burden on the Grievor due to her childcare responsibilities that is not imposed upon welders who do not share her status, ie. a single mother.   The Employer’s rule limited the opportunities for the Grievor to fully participate in the workforce because of her childcare responsibilities.  Because this rule was not justified by evidence that it is a requirement of the job or that to assign her to day shift only would impose undue hardship on the Employer it was concluded the Employer’s rule requiring welders to work night shifts is discriminatory and violated the human rights legislation.   It was concluded that based on the evidence presented the Grievor was experiencing an adverse effect from the Employer’s rule directly linked to her unique family status.

Both the Adjudicator and the Court also agreed that the concern that a liberal interpretation of discrimination based on family status raised concerns regarding a potential flood of requests for workplace accommodation of child care needs has no place in the analysis of whether discrimination exists.  If such a flood were to exist and an excessive burden was placed on an employer, they could raise that as a justification for discrimination in an undue hardship defence.  In this case there was no such evidence.  In fact the Arbitrator notes that since family status was added as a prohibited ground to the Alberta legislation in 1996, 17 years ago, there have been fewer than 1 dozen reported human rights tribunal or arbitration cases in Alberta dealing with family status.

Notably in its decision the Court identifies a list of legal principles summarized by the Arbitrator in regards to accommodation of child care needs that are helpful for employers and employees to understand:

·       Section 7 of the Alberta Human Rights Code is to be given a broad and liberal interpretation that is consistent with the purposes of human rights legislation, which include the advancement of equity and fairness in the workplace and the alleviation of burdens, obstacles and disadvantages to participation in the workforce that are linked to the protected grounds, in this case, family status.

·       No degree of discrimination is to be tolerated. There is no threshold of discrimination that parents must accept before seeking accommodation from their employers.

·        My focus is not to be on the motive or intentions of the Employer but on the effect upon the Grievor. Does the Employer’s rule requiring welders to work night shifts have the effect of imposing a burden on the Grievor due to her family status that is not imposed upon welders who do not share her status?

·       It is in the interests of society to share the burden of family responsibilities to the extent that the burdens are borne disproportionately by working parents in a way that impedes their full participation in the workforce. Does the Employer’s rule limit opportunities for the Grievor to fully participate in the workforce due to her family status?

·        It is reasonable to expect employers to design their workplace and develop rules and policies that will further these purposes, including reasonable individual accommodation. Has the Employer designed a rule that reflects the differences of individuals in the workforce due to their family status?

·        The “choice” to become a working parent, or in this case, a single working parent, and to fulfill the duties and responsibilities of both work and parenthood, do not negate a claim of discrimination.

Although this case is an application of the Alberta Human Rights statute, which bears some differences from the equivalent Ontario Human Rights Code, it should be persuasive to Ontario employers and employees when assessing their rights and obligations in the workplace regarding the impact of child care needs.

In closing I conclude that this decision is not only a win for working parents, it’s a huge win for women in trades.  It confirms that employers have to do a better job at developing systems to advance equity and fairness in the workplace and alleviation of burdens, obstacles and disadvantages to participation in the workforce that are linked to child care responsibilities of women, on which the burden still mostly falls.  In his decision the arbitrator notes that “It is clear on the evidence that the additional burden of childcare responsibilities has been a factor in the relatively low participation rate of mothers in the building trades”.  This being recognized is important for mothers pursing work in male dominated trades.

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About Pamela Krauss

Pamela Krauss is an expert in employment law.

She has appeared before the Ontario Small Claims Court, Superior Court of Justice, Divisional Court, and Court of Appeal and the Human Rights Tribunal of Ontario. She also has a breath of experience in handling Ministry of Labor complaints, Canadian Labor Board unjust dismissal claims and Canadian Human Rights Commission applications.

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