In this case the Employer, SMS, operated a 24/7 business
supplying equipment, parts and service to the construction, mining
and petrochemical industries in the Fort McMurray, Alberta area.
The Grievor, a resident of Newfoundland, successfully applied for a
job as a labourer at SMS and left the Rock to take up employment at
SMS in November 2010. Initially, she worked 12 hour shifts, with
the shifts rotating between 14 day shifts, followed by 14 days off
and then 14 night shifts.
When the Grievor relocated to Alberta, she left behind a young
son in the care of her mother. Shortly after arriving in Alberta,
the Grievor became pregnant with a second child and her first child
arrived to live with her around August of 2011. Also in August
2011, the Grievor went off work on leave and she had the second
child in February of 2012. The two children came from different
fathers, neither of whom was willing to provide either monetary or
parenting support to the Grievor.
While off, the Grievor applied for and was awarded a position as
an apprentice welder. This position would involve her returning to
work on 12 hour shifts, but with a 7 day rotation instead of 14.
The Grievor returned to work in October of 2012. After working her
first night tour in November, 2012, the Grievor filed a grievance
claiming she was being discriminated against on the basis of her
"family status" based on the company's decision to
deny her request to work fixed day shifts. The Grievor claimed that
when she worked nights, she either had to stay up during the days
with little sleep to care for her children or secure around the
clock childcare when she was working nights (neither of which were
viable alternatives, she claimed).
The matter proceeded to arbitration where the evidence showed,
amongst other things: the Grievor was earning over $100k per annum;
extended childcare was readily available but more costly; the
Grievor had not applied for a childcare subsidy that is available
in Alberta; the Grievor had not pursued a claim for child support
against either father; and, her primary concerns were financial
ones. Nonetheless, arbitrator Kanee found that the Grievor was
experiencing discrimination on the basis of family status and
awarded her a fixed day shift.
For employers, there are 3 extremely disturbing aspects to this
Arbitrator Kanee concluded that "family status"
encompasses essentially all parental/childcare responsibilities and
not just those that are "extraordinary", as has been
suggested at least by the Courts in B.C.Thus any interference that
a work rule creates with a parental/childcare responsibility, no
matter how minimal, is potentially discriminatory.
Arbitrator Kanee also suggests that employees do not need to
show they have made reasonable (or indeed any) efforts to
"self-accommodate" (i.e. find a solution on their own
that allows them to meet both their employment and parental
obligations) before a prima facie case of discrimination
can be established. This analysis is at odds with the awards of
several other prominent arbitrators who have in past found exactly
Arbitrator Kanee additionally found that there need not be a
change in working conditions for a prima facie case of
family status discrimination to arise.Rather, a change in the
employee's personal circumstances (even a voluntary one) can
give rise to a family status discrimination claim if the workplace
rules then interfere with parental obligations.To quote, "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." [Ed. Note –
Apparently this is so despite the Grievor's full prior
knowledge of the work rules, including the employer's shift
schedule, at the time hiring and when applying for the welder's
In our considered view, if the reasoning outlined above is
picked up on and adopted by arbitrators in Ontario we can expect to
see a plethora of family status discrimination claims being made in
workplaces across the province. What is unknown at this time is
whether SMS is seeking judicial review of this very disturbing
award? We certainly hope that a judicial review will be pursued and
will advise of any further developments as we become aware of
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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