A recent adjudication decision suggests that the duty to accommodate an employee’s family status needs under the Canadian Human Rights Act, as recognized by the Federal Court of Appeal in Johnstone, is “quite narrow and limited”. In Guilbault v. Treasury Board (Department of National Defence) (January, 2017), a grievance referred to adjudication under the federal Public Service Labour Relations Act, the employee alleged that his employer discriminated against him on the basis of family status by refusing to accommodate his request for a shortened work day. The Board dismissed the grievance on the basis that the employee’s desire to arrive home earlier to help his wife did not engage his legal responsibility towards his children.
The grievor in this case lived in Deux Montagnes and worked in Montreal, which meant a two hour commute each way by car, commuter train and subway. When he initially requested accommodation, the grievor cited his spouse’s health issues, and the care requirements of his four children, two of whom have special needs. The grievor requested that he be allowed to take his two, fifteen minute paid breaks at the end of the day in order to facilitate his early departure. He claimed that leaving work half an hour early each day so that he could return home early would greatly reduce the onus on his spouse. This initial request was refused by the employer on the basis that the fifteen minute breaks that had been negotiated with the union were intended to give employees a break during the work day. In addition, because the breaks were paid, the employer was concerned that if an accident were to occur during this time, the employer would be responsible. Eventually, however, the employer did permit the grievor to take his half hour unpaid lunch period at the end of the day in order to permit him to leave early.
While the solution that was eventually agreed to resolved the accommodation issue, the grievor nevertheless pursued the grievance, claiming that the time it had taken for the employer to implement this solution (21 months), and the employer’s refusal to acknowledge that it had a legal duty to accommodate him, constituted a violation of the Canadian Human Rights Act. He sought damages for pain and suffering in the amount of $12,500, as well as special compensation in the amount of $20,000 for the deliberate nature of the employer’s conduct.
In considering the grievance, the adjudicator applied the test set out by the Federal Court of Appeal in Canada (Attorney General) v. Johnstone (2014). Readers of Focus may recall that the test set down in Johnstone requires a claimant to prove the following elements in order to establish a prima facie case of family status discrimination:
- the child is under his or her care and supervision;
- the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
- the individual has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
- the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
The adjudicator applied this test and concluded that the employer had not discriminated against the grievor. The decision turned on the second component of the Johnstone test – the requirement that the workplace rule interferes with the parent’s ability to meet a legal obligation to his or her child. The adjudicator found that, because the grievor’s children were in the care of their mother while the family awaited his return from work at the end of the day, no legal obligation arose. While it might have been “preferable” for his wife to have more help with the children given her health issues, “the fact that the grievor could not arrive home earlier did not engage his legal responsibility toward his children.” The adjudicator also noted that there was no evidence to indicate that the grievor and his wife had considered the possibility of finding external help (i.e., hiring a babysitter for a few hours). Notably, the adjudicator stated:
Between parents’ legal obligation to ensure the well-being of their children and the choices they make to meet that obligation, a line must be drawn to identify the employer’s legal obligation not to discriminate against an employee based on family status. … the employer cannot have a legal responsibility for the functioning of the family. It seems to me that the obligation that the Court of Appeal acknowledged in Johnstone is quite narrow and limited. The employer’s work rule must hinder the employee from fulfilling his or her legal obligations toward his or her children.
The adjudicator concluded that the employer’s initial refusal to accommodate the grievor by allowing him to leave work early had not hindered his ability to meet his legal obligations towards his children or spouse. In the result, the grievance was dismissed.
In our view
Readers of Focus may recall that the Johnstone test was explicitly rejected by the Human Rights Tribunal of Ontario (the “HRTO”) in Misetich v. Value Village Stores Inc. (September, 2016) (see Human Rights Tribunal of Ontario rejects Johnstone test for family status discrimination – “the test for discrimination is the same in all cases”) . The HRTO instead applied what it referred to as “well-established human rights principles” to determine family status discrimination. These principles require an employee to demonstrate that the impugned workplace rule results in a “real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work.” In assessing the disadvantage, consideration is given to other supports available to the employee. The decision in Misetich was upheld on reconsideration in December of 2016.
Although the practical differences between the federal approach under Johnstone and the approach adopted by the HRTO in Misetich remain to be seen, this decision confirms that, for federally-regulated employers who are subject to the Canadian Human Rights Act, the Johnstone “test” continues to apply. While it is always advisable for employers to demonstrate a willingness to be flexible in attempting to meet the family-related obligations of their employees, there is still a line that can be drawn between an employee’s legal obligations and his or her personal or family preferences.
By: Vicky Satta and Mélissa Lacroix, Emond Harnden LLP
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