In Clark v Bow Valley College, (2014
AHRC 4), Ms. Leah Clark filed a human rights complaint on April 11,
2011 against her employer, Bow Valley College, (the
"College"), that was heard by the Alberta Human Rights
Tribunal. Her complaint alleged discrimination on the ground of
family status after her employment was deemed to be abandoned by
the College. Ms. Clark did not return from maternity leave on the
date required by the College because she could not locate suitable
childcare for her son.
Ms. Clark had been a nursing instructor at the College since
March 2007, and was approved for maternity leave from February 1,
2010 through January 31, 2011. Ms. Clark went on approved sick
leave in November 2009, and her son was subsequently born on
January 2, 2010, nearly seven weeks premature. In June 2010, the
College sent a letter to Ms. Clark which stated that her maternity
leave was February 2010 to January 30, 2011. Ms. Clark, however,
became aware in November 2010 that she had been placed on the
instructor schedule for January 3, 2011, a month earlier than her
expected return. The College had moved the end date of Ms.
Clark's maternity leave forward a month, yet Ms. Clark had not
been informed until November 2010.
Ms. Clark contacted the College and explained that while she had
childcare in place for February 2011, she had no other childcare
options available for January. The College made no further
inquiries with Ms. Clark as to why she had no other childcare
options and denied her request for additional leave past January
10, 2011. The College subsequently sent a letter to Ms. Clark with
two childcare brochures enclosed, with the message that she should
"avail herself of these services", and that if she did
not report to work by January 10, 2011 she would risk termination.
Ms. Clark testified to the fact that due to her financial
situation, and the sickness of her son, she could not find other
childcare arrangements for January 2011.
When Ms. Clark did not report for work by January 13, 2011, the
College considered her to have abandoned her position and she was
deemed to have resigned from her employment. The College's
response to Ms. Clark's human rights complaint originally
relied on the fact that the collective agreement in place provided
a maximum amount of 52 weeks of maternity and parental leave. While
this argument was abandoned at the hearing, the Alberta Human
Rights Commission Tribunal Chair (the "Chair") confirmed
that all collective agreements must comply with human rights
legislation, and the 52 week maximum maternity and parental leave
in the collective agreement applicable here had no impact on the
human rights analysis.
Ultimately, the Chair found that there was discrimination
against Ms. Clark on the basis of family status, and that the
College did not fulfill its duty to accommodate Ms. Clark. Ms.
Clark was awarded $15,000 for general damages, and loss of income
damages for about four months.
Employers Must Meaningfully Acknowledge Protected Human
The College's response of providing two childcare brochures
and advising Ms. Clark to "avail herself of these
services" was not considered by the Chair to be a meaningful
acknowledgment of Ms. Clark's family status. Further, once Ms.
Clark communicated her childcare problem, she was requesting
accommodation. At that point, the College should have gathered
information to assess whether accommodation was required. The Chair
found that if the College had genuinely engaged Ms. Clark with
respect to her concerns, it would have been able to accurately
assess Ms. Clark's childcare situation and the parties could
have attempted to find possible ways to accommodate Ms. Clark.
This case provides a reminder that employers need to be
proactive when an employee raises a concern that falls within the
enumerated grounds protected by human rights legislation,
regardless of the terms of employment. Employers should ensure that
they not only seriously address the concern, but they also work
with the employee to gather sufficient information, and assess
whether an accommodation is required or possible.
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