Canadian HR Reporter

CANADIAN HR REPORTER FEBRUARY 2019 EMPLOYMENT LAW 5 Jeffrey Smith Legal View In her application, Durikova stated the leave was to take care of her daughter — 14 months old by this point — because "children grow so fast." Denial of personal leave to care for child not discrimination: B.C. tribunal Worker took 18 months of maternity and parental leave; wanted 12 more months A British Columbia worker's claim of dis- crimination based on family status related to her employer's refusal to grant her ad- ditional leave following parental leave has been dismissed by the B.C. Human Rights Tribunal. Jana Durikova was employed as a store clerk at the B.C. Liquor Distribution Branch (LDB) of the provincial Ministry of Justice. She was hired in 2007 as a unionized worker with a collective agree- ment that allowed the option of extended child care once parental leave had been completed. In July 2014, Durikova went on maternity leave followed by pa- rental leave. When the leaves were used up after a total of one year, she used the extended child-care option in the collective agreement to take another six months off until Janu- ary 2016. At the same time, Durikova asked the HR department about the possibility of taking an addi- tional general unpaid leave when the extended child-care leave expired. She was told the unpaid leave was available with the ap- proval of her store manager and regional manager. Durikova applied to the store manager, 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." The store manager indicat- ed he had no problems with it and after some followup with Durikova, the regional manager approved her request to file an application. In her application, Durikova stated the leave was to take care of her daughter — 14 months old by this point — because "children grow so fast." However, the LDB's HR depart- ment denied Durikova's request on the basis that she hadn't pro- vided sufficient explanation as to why normal child-care options weren't available. LDB determined her reasons for extending the leave weren't sufficiently family-related and informed Durikova she was ex- pected to return to work on Jan. 24, 2016. Durikova then requested an ac- commodation due to family status on Jan. 13, 2016. Durikova's union also filed a grievance against 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 she and her husband didn't have "the luxury of an extended family nearby to help with care" and said it would be difficult to teach her child about her heritage and language — she was originally from Slovakia — so her daughter 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, saying there were "many emo- tional and family reasons" for it as well as the high cost of child care for young children, 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 LDB denied her request because it was concerned about the possibility she wouldn't return to work af- ter the leave, it would incur costs from her leave — which was al- ready 18 months and would to- tal 30 months if her request was granted — general leaves of ab- sence usually weren't taken right after parental leave, and it was worried about being bombarded by similar requests. An arbitrator allowed the grievance, finding that LDB de- nied Durikova's leave without telling her why (it was concerned about the nature and length of the leave). In addition, the regional man- ager approved her application for leave based on her circumstances and there was no evidence LDB considered other factors. e tribunal noted that family status discrimination was set out in the 2004 decision of Campbell River & North Island Transi- tion Society v. H.S.A.B.C., where it was defined as "a change in a term or condition of employment imposed by an employer (that) results in a serious interference with a substantial parental or other family duty or obligation of the employee." PERSONAL > pg. 10

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