The Court of Queen's Bench of Alberta recently delivered its
much-awaited decision in the case of SMS Equipment Inc.
v. Communications, Energy and Paperworkers Union, Local 707, 2015
ABQB 162. In the SMS decision, the Court upheld
an arbitrator's decision that the employer discriminated
against an employee on the basis of family status, by refusing to
accommodate the employee's child care responsibilities. The
Court also clarified the test to establish a prima facie
case of discrimination based on family status.
The issue of family status in the workplace has become a hot
topic in recent years. This decision follows a line of other recent
family status decisions which have held that an employer is
required to accommodate an employee where a workplace rule
interferes with the fulfillment of a childcare obligation.
However, the mere fact of having a family or some change in
family status (ie. the birth of a child or family illness) does not
give rise to special entitlements for employees. In order to get to
the stage of the inquiry that considers whether accommodation is
required, employees must first establish a prima facie
case of discrimination on the basis of family status. In other
words, the employee must be able to demonstrate that the employee
was the subject of adverse treatment by the employer related to the
employee's family status, which resulted in discrimination. If
a prima facie case of discrimination is established, the
burden then shifts to the employer to show that its discriminatory
policy is a bona fide occupational requirement and that
accommodating the employee would amount to undue hardship.
The SMS Decision
The facts in the SMS decision provide us with insight
into when an employer may be required to provide accommodations to
an employee with family obligations. The grievor, a single mother
of two children, worked night and day shifts as a welder on a
rotating basis at SMS Equipment Inc. (the "Employer").
The grievor asked to be placed on straight day shifts because she
had no extended family members who could assist her with childcare.
As a result, not only did she have to pay a third-party care-giver
to look after her children while she worked night shifts, she then
either had to also pay for care during the day so she could sleep,
or she had to care for her children during the day, which gave her
very little opportunity to sleep. The Employer refused the request
for straight day shifts. The grievor's union then filed a
grievance and took the position that the Employer's refusal to
accommodate her request to work only day shifts was discriminatory
on the basis of family status. The matter eventually proceeded to
The Arbitrator found in favour of the grievor and confirmed that
"family status" under the Alberta Human Rights
Act ("AHRA") included childcare
obligations. The Arbitrator also concluded that the Employer's
rule requiring employees to work both day and night shifts imposed
a burden on the grievor due to her childcare responsibilities that
was not imposed upon other employees who did not share her status.
As such, the grievor had established a prima facie case of
discrimination. Further, the Employer did not prove that it could
not accommodate the employee without suffering undue hardship,
especially because the evidence showed that another employee was
willing to work straight night shifts.
The Court in the SMS decision applied a
'reasonableness' standard of review in upholding the
Arbitrator's determinations. The Court also confirmed that the
correct test to establish prima facie discrimination based
on family status under the AHRA requires that:
the complainant has a characteristic that is protected from
the complainant has experience an adverse impact; and
the complainant must show that the protected characteristic was
a factor in the adverse impact.
Consideration for Employers
To date, there is still some uncertainty across the country
regarding the appropriate test to be applied to establish prima
facie discrimination based on family status. While the law on
accommodating family status in the workplace continues to evolve,
employers should carefully consider requests for accommodation by
employees with family obligations. If an employee's request for
accommodation relates to a legitimate family status need, the
employer may have a duty to canvass potential accommodations
including scheduling modifications or flexible work arrangements to
assist with the employee's caregiving responsibilities.
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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