Canadian Employment Law Today

6 | January 23, 2019 Canadian HR Reporter, a Thomson Reuters business 2019 Cases and Trends asked LDB's human resources department about the possibility of taking additional general unpaid leave when the extended childcare leave expired. She was told the unpaid leave was available with the approval of her store manager and the LDB regional manager. Worker wanted to continue to care for her child at home Durikova applied to the store manager in August, explaining that she wanted to "take care of family matters ensuring that my family's health, happiness, safety, financial stability and installation of our values are properly attended to." e store manager said he had no problems with it and, after some follow-up from Durikova, the region- al manager eventually approved her request to file an application. In her application, she stated that the leave was to take care of her daughter — 14 months old by this point — because "children grow so fast." However, the LDB's human resources department denied Durikova's request on the basis that she hadn't provided sufficient explanation as to why normal childcare op- tions weren't available. e LDB determined her reasons for extending her leave weren't sufficiently family-related and informed Durikova she was expected to return to work on Jan. 24, 2016. Durikova then requested an accommodation due to family status on Jan. 13, 2016. Durikova's union filed a grievance against the LDB's denial of her leave request and Durikova launched a human rights com- plaint claiming discrimination on the basis of family status. Durikova stated that she and her husband didn't have "the luxury of an ex- tended family nearby to help with care" and indicated that it would be difficult to teach her child about her heritage and language — she was originally from Slovakia — so she could communicate with relatives. She also argued that her reasons for requesting a general leave of absence were more complex than simply taking care of her child, there were "many emotional and family reasons" for it, the cost of childcare for young children was high, and the denial created hardship for her family. She added that her parental and maternity leave entitlement had nothing to do with her request for general leave. Durikova also claimed the LDB denied her request because It was concerned about the possibility she wouldn't return to work after the leave, it would incur costs from her leave — which was already 18 months and would total 30 months if her request was granted — general leaves of absence usually weren't taken right after parental leave, and it was worried about being bombarded by similar requests. An arbitrator allowed the grievance, find- ing that the LDB denied Durikova's leave without telling her why — that it was con- cerned about the nature and length of the leave. In addition, the regional manager ap- proved her application for leave based on her circumstances and there was no evidence the LDB considered other factors. e tribunal noted that family status dis- crimination was set out in the 2004 decision of Campbell River & North Island Transition Society v. H.S.A.B.C., where it was defined as "when a change in a term or condition of em- ployment imposed by an employer results in a serious interference with a substantial pa- rental or other family duty or obligation of the employee." However, the court in Camp- bell River specified that there was a high bar in such circumstances and most situations involving a conflict between a work require- ment and a family obligation would not be considered discrimination based on family status. is was later demonstrated in the 2014 decision Johnstone v. Canada (Bor- der Services Agency), which limited paren- tal responsibilities worthy of human rights protection to those "that a parent cannot neglect without engaging their legal liability for the child." e tribunal found that through most of the process in applying for general leave, Durikova indicated she wanted to care for her child and teach the child her native lan- guage of Slovakian as well as English. On her application form, Durikova wrote that she wanted to take care of her daughter. However, none of these reasons qualified as special circumstances about the care of her daughter that made it more than her person- al choice to take additional leave or that care for her daughter would be unavailable if she returned to work, said the tribunal. e tribunal also found that the LDB's interference with Durikova's wish to be at home with her child through its requirement that she report to work following her paren- tal leave didn't cause any real disadvantage or adverse impact to her relationship to her child or her parental responsibilities. It determined that Durikova's human rights complaint had no prospect of success and dismissed it. ''It appears clear that Ms. Durikova want- ed to stay at home with her child to pass on her culture and language,'' said the tribunal. ''at is a laudable desire. However, it ap- pears to be a choice rather than a substantial family duty or obligation as contemplated by Campbell River.'' For more information see: •Durikova v. BC Ministry of Justice, 2018 CarswellBC 3148 (B.C. Human Rights Trib.). •Campbell River & North Island Transition Society v. H.S.A.B.C., 2004 CarswellBC 1012 (B.C. C.A.). •Johnstone v. Canada (Border Services Agency), 2014 CarswellNat 1415 (F.C.A.). Employer didn't explain reasons for denial of leave « from DENIAL on page 1 The worker argued her parental and maternity leave entitlements had nothing to do with her request for general leave. WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Canada Professional Development Centre's live and on-demand webinars discussing topics such as pay equity audits, marijuana in the workplace, and dealing with sexual harassment in the #MeToo era. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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