Canadian Employment Law Today

June 2, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2021 Key Media Canada (HR) Ltd., a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under licence by Key Media Canada (HR) Ltd. CANADIAN EMPLOYMENT LAW TODAY is a trademark of Key Media Canada (HR) Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 79990 3547 RC-0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE info@keymedia.com www.employmentlawtoday.com President: Tim Duce Editor: Jeffrey R. Smith Email: jeffrey.smith@keymedia.com Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: fred.crossley@keymedia.com Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: donnabel.reyes@keymedia.com Phone: (647) 374-4536 ext. 243 THIS INSTALMENT of You Make the Call involves an Alberta correctional officer who claimed a shift change was discriminatory. Dean Hrycyk was a part-time correctional peace officer with the Edmonton Young Offender Centre (EYOC), hired in May 2012. It was EYOC policy to minimize alterations to shift schedules once staff were assigned to a roster for a calendar year. Normally, changes would only be made when a new schedule was made for the coming year. However, in 2016, there was an issue on the midnight shift that required the EYOC to move another employee. This created a vacancy on the shift, so management looked at possible solutions that would balance the experience, performance and type of staff on each shift. There was a requirement to have at least one female on each midnight shift as strip searches and pat downs could only be performed on inmates of the same gender. There was no formal male requirement as the majority of correctional officers at the facility were male. Management determined that Hrycyk would be a good fit for the midnight shift, as he was a strong performer that was needed on the shift. There would also be opportunities on the midnight shift to carry out acting supervisory duties, for which they believed Hrycyk was suited. Hrycyk didn't want to change shifts, as he felt it would interfere with his ability to prac - tise his faith. He performed volunteer shifts at his church and the shift change would not only affect them, but it would also make him unable to attend church services at Christmas, which he deemed important. When the shift change was implemented, EYOC cancelled vacation days in December and January that Hrycyk had booked and had been approved, including Christmas Day. After the change, he submitted another request for days off in January but not any days in December. Hrycyk also claimed that his shifts were changed because he was male, as he was being singled out to move from shifts that could be as low as 25 per cent male to midnight shifts that were 75 per cent male. EYOC management contended that Hrycyk was chosen for the shift because of operational requirements, noting his experience and abili - ties. It also said that even if his gender was a factor in the decision, it was a bona fide occupational requirement because 90 per cent of the young offender inmates were male, necessitating a majority of officers on the shift to be male. YOU MAKE THE CALL Was the shift change due to legitimate operational requirements? OR Was the shift change discriminatory? IF YOU SAID the change was for legitimate operational requirements, you're right. An Alberta human rights investigator found that the evidence supported the idea that the change was made for operational reasons. Hrycyk was chosen because his good performance made him the right fit for the midnight shift, but his gender was also a legitimate reason and Hrycyk wasn't singled out, said the investigator. The investigator also found no evidence of discrimination based on religious reasons and Hrycyk could have requested accommodation by asking for specific days off for volunteering at his church. However, he made no such request. Hrycyk appealed to the Alberta Human Rights Tribunal, claiming an inappropriate use of operational requirements, adverse effect discrimination and a failure to accom - modate. The tribunal noted that it would have been good practice for EYOC management to consult Hrycyk before making the shift change and this could have resolved some of his concerns, but the EYOC had the right to make shift changes as needed for operational requirements. The tribunal agreed that there was no evidence that Hrycyk's gender or religion were a factor in the shift change and Hrycyk's failure to request accommodation meant he hadn't been denied it — an employee has an obligation to participate in the accommo - dation process, including making the need for reasonable accommodation known, said the tribunal. The tribunal noted that Hrycyk submitted a new application for vacation days but didn't request time off at Christmas. The complaint and subsequent appeal were dismissed. For more information. see: • Hrycyk v. Alberta Justice and Solicitor General, 2021 AHRC 73 (Alta. Human Rights Trib.). Alberta correctional officer resists shift change Officer's experience and performance made him a fit for midnight shift needs.

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