New employee rights, and concomitant employer obligations, are
springing up with such frequency that this weekly column barely has
room to catalogue them. Following is the latest addition.
Your employer denies your request for an hour shift change to
allow you to pick up your child from school each day at 5 p.m. Can
you now file a valid human rights complaint for discrimination
based on family status? Absolutely. And, however unlikely to
succeed there can be no reprisal for making the complaint.
But will you win? In its recent decision in Canada (Attorney
General) v. Johnstone, the Federal Court of Appeal made its
decision based on the answers to four questions:
Are you responsible for the child's
supervision? This is fairly straightforward. If you are
the parent, not a second cousin thrice removed, the answer is
Have you searched for alternate, even pricier, solutions
before asking to rearrange your schedule? You, not the
employer, are the parent and you know your needs and are in the
best position to find a workable solution. Your employer should ask
why you need the change and what alternative options you have
explored. For example, have you exhausted all familial resources,
including Aunt Ella who doesn't like children and your
12-year-old niece who just got her babysitting licence? Have you
also explored more costly options and all available government
subsidies that could assist in offsetting additional costs?
Is it your need or responsibility to provide childcare
rather than a personal choice? Your selection of childcare
is likely a personal choice, regardless of how essential you feel
your carbon footprint or vegan snack time is to your child's
well being. To demand to be granted a shift (or any other workplace
change), your childcare issue must be one you cannot legally
neglect without engaging your responsibility under the Criminal
Code or provincial legislation.
Requesting time off to attend a school play at 2 p.m. on a
Wednesday because your child's school has no respect for
working parents is not a legal responsibility, even if it leads to
tears because Dad can't attend. Similarly irrelevant to your
responsibility as a parent are your child's after school
On the other hand, having to leave work early because your
child's daycare is closing due to flood warnings, and no one
else can supervise the child until your shift ends, would likely
trigger your legal child care responsibilities and entitle you to a
shift change, at least for the day in question.
But even if your childcare issue is a responsibility rather than
a personal choice, your employer is not required to provide you
with your ideal schedule or other workplace change, only a change
that is reasonable in the circumstances.
To ensure it is not taken advantage of, the employer should be
asking about your particular childcare issue. For example, it may
not require a permanent one-hour shift change, but rather a
30-minute change twice a week. The employer is entitled to know
what flexibility the daycare allows, who else in your family might
attend to the child's needs and what other daycare might be
available that would not require its accommodation.
Does your current shift schedule interfere with your
childcare needs in a more-than-trivial way? Are you
seeking a stress free commute with time to swing by the grocery
store? Or are you trying to avoid rushing through traffic and still
being 30 minutes late for the close of daycare for a third time
this week. The latter situation may justify a shift change.
If the answer to all four questions is yes, you might succeed in
a human rights complaint against your employer. In each case, take
a hard look at your alternative options before asking your
The Federal Court of Appeal found that the employer should have
granted Ms. Johnstone's request for a simple shift change three
days a week, for which she was unable to secure any form of
childcare, live-in or otherwise, near her home or work.
However, employees' increasing requests for special
treatment can be far more nuanced and challenging. Employers should
speak with employees about their options and seek legal advice
before risking a human rights claim, which the publicity of this
decision (as well as other recent ones involving elder-care) has
just made far more likely.
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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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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