We recently came across this new Ontario human rights decision in the course of advising an Alberta employer on an employee child care issue. There are relatively few Alberta decisions that speak to this issue, so Alberta employers often have to look for guidance from the Ontario, British Columbia, and Federal tribunals and courts, when trying to navigate this difficult area of law.
In Miraka v A.C.D. Wholesale Meats Ltd., a wholesale meat distributor made the poor choice of terminating a delivery truck driver’s employment after he missed 3 consecutive days of work. 2 of those days were missed because he had to take care of his two children after his wife, who normally watched them, became sick. The Tribunal determined that the termination was unlawful and discriminatory.
It stated that “[i]n Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII), the Federal Court of Appeal clarified that the sorts of parental obligations that fall within the protected ground of “family status” under human rights legislation are substantive obligations that engage a parent’s legal responsibility to a child”.
Dealing with the employer’s argument that the Johnstone decision meant that the employee was obligated to arrange alternate child care, the Tribunal stated that it was
“not convinced that the requirement to demonstrate reasonable efforts to make alternative childcare arrangements applies in cases like this, where there is only an infrequent, sporadic or unexpected need to miss work to take care of one’s children…Rather, what comes into play in cases like this one is the overarching principle that a “bona fide childcare problem” has resulted in an employee being unable to meet his or her work obligations….this is a highly fact-specific inquiry, and each case must be reviewed on an individual basis in regard to all of the circumstances.”
The Tribunal also did not accept the employer’s argument that the employee was obliged to try to hire, on short notice, a stranger from “Craigslist” or “Kijiji” to care for his young children, before the employee would fall within the Human Rights Code’s protections. It found that doing so may have been inconsistent with the employee’s legal obligations to ensure the safety and well-being of his children.
Alberta employers should keep this decision in mind when responding to an employee’s last minute request or demand for time off work to deal with childcare obligations, and even other family needs. Arguably, and if the right facts exist, employees could be protected under the Alberta Human Rights Act even if they have made no efforts to seek out alternate child care. The result is that they could be entitled to the short period of time off, in most cases despite the negative impact that their absence will have on the employer’s operations.
McCarthy Tétrault LLP
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