Lessons from the latest mat leave firing mishap

The continuing case law development around Family Status discrimination hasn’t been taken on board by everyone in HR, as this recent human rights decision shows.

Lessons from the latest mat leave firing mishap
of the emerging issues in Human Rights Law in the workplace is the expanding definition of “family status” and the obligation of employers to accommodate the childcare needs of employees. 

The Federal Court of Appeal’s decision earlier this year in Canada v. Johnstone, 2014, FCAA 111, was the subject of much discussion this year.  Now an Alberta Human Rights Tribunal Decision involving a nursing instructor at Bow Valley College has adopted the test in Johnstone.

The complainant requested a maternity leave to begin in February, 2010.  Her child was born prematurely and after the birth of the child, there was no communication about the start or end date of her scheduled maternity leave.  The complainant lived approximately 100 km away from her place of employment.  In late 2010, she became aware the she had been placed on the instructors’ schedule beginning early January 2011. 

She contacted the employer to advise that she did not have childcare in place until February 1, 2011 and was unable to work before that time. She offered to use vacation time in January, but was denied any leave beyond January 10.   When she did not report for work on January 13, the employer deemed the complainant to have resigned from her position and she was terminated. 

A complaint was lodged that her employer failed to accommodate her. 

Bow Valley College took the position that there was no discrimination and that any denial of the use of vacation was based on their operational needs, given the shortage of nursing faculty and their inability to obtain coverage for the position. They further argued that they had accommodated the complainant to the point of undue hardship who failed to make reasonable efforts to obtain childcare.

The Tribunal did not accept the employer’s arguments and found the College’s efforts to accommodate inadequate. The Tribunal cited a four part test as set out in the Johnstone case, specifically:

“(i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.”

The employer’s arguments were rejected as the complainant did not require a permanent change in the hours, but only a three week adjustment period.  The employer’s argument of operational requirements also failed as the Tribunal found there was no undue hardship to have a shared instructor and the College further located an instructor without the need for advertisement. 

The complainant was awarded $15,000.00 for injury to dignity and lost wages for the period of February to May, 2011.

Employers need to be aware of their obligations to accommodate employees with childcare obligations and search for reasonable solutions. 

Employers should consider and discuss the options proposed by employees when the job requirements have a negative impact on an employee’s family obligations.

September 10, 2014
Thomas V. Duke

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