Canadian Employment Law Today

June 12, 2019

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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Canadian HR Reporter, 2019 Childcare not as much of an issue as worker claims Family status discrimination complaint falls short upon examination of when worker traded shifts; worker refused all options except the one she wanted BY JEFFREY R. SMITH A British Columbia correctional officer has lost her claim of family status discrimination launched when her employer didn't agree to her desire for permanent shift changes so she could avoid overnight shifts. Ruby Havard was a correctional officer at Matsqui Institution in Abbotsford, B.C. Her husband also was a correctional offi- cer at the institution. She normally worked two 12.75-hour day shifts followed by two overnight shifts of the same length and then five days off. When Havard gave birth to her first child in 2009, she was frequently allowed to trade her night shifts for day shifts so she could be home at night when her husband was to be together as a family. She had a partner at work who preferred only night shifts, so she traded with this co-worker and basically worked four day shifts fol- lowed by five days off. is practice con- tinued after the birth of her second child in 2011 and afterwards. However, in early 2014 Corrections Canada (CSC) informed all correctional officers that permanent shift trades were no longer permitted and the correctional manager would approve shift trades on a case-by-case basis. is meant Havard could no longer work only day shifts by trading all of her night shifts. is was problematic for Havard, as her oldest child had night terrors and seizures. She didn't want to leave her children with her mother overnight, as her mother had a disability requiring medication, and her husband also had to work overnight shifts. In addition, by working night shifts, Ha- vard and her husband would need daycare for 2.5 days in every nine-day period. On Feb. 27, 2014, Havard requested formal accommodation from CSC based on her family status, so she could see her husband and children together as a family. e request was to accommodate her until 2016, when her children would both be in school. However, CSC denied her request and Havard was forced to use her leave credits to care for her children when there weren't any childcare options at night. Accommodation options discussed e assistant warden of operations at the institution suggested Havard move to a "250-day post," which would involve working 7 a.m. to 3 p.m., Monday to Fri- day. However, Havard rejected this pro- posal as she lived some distance away from the institution and she would have to leave her home at 6 a.m. before each shift — a time when it would be difficult to find childcare, which she would need five out of every seven days on this sched- ule, said Havard. In addition, the shorter shifts would mean she would work 80 to 90 more days per year — though with the same number of hours — and she would go weeks without seeing her hus- band, who would be on the two-days/two nights schedule. Nor would she be able to drop off and pick up her children at preschool, or be entitled to lieu hours. e assistant warden responded by con- firming the 250-day post was the accom- modation being offered, as it met her need to work days. e institution's person- nel committed had reviewed the request within the existing schedule structure and determined the 250-day post met Havard's "core needs."He also added that "just be- cause she wanted something, it did not mean she needed it." CSC also offered to put Havard on a shift schedule opposite her husband, but Havard refused because she said it didn't work with her work-life balance. CSC then suggested it could change her husband's shift schedule so they didn't start and end at the same time, but Havard immediately dismissed this option. Havard then searched for daycares, fam- ily, or friends who would work with earlier drop-offs or overnight shifts. She was un- successful in finding a workable option. She continued to work her regular shift rotation and when it came her turn to work night shifts, she used her accumulated leave or, if her husband was also working the night shift, her nephew stayed with her children. As it turned out, she mostly used her leave to be home on evenings when her husband was, as she had done with much of her traded night shifts. Havard applied to trade her night shifts in May and June 2014 under the new pro- tocol, but the trades weren't approved. e assistant warden granted her an extension to accommodate her with day shifts only until the end of August, but if she still re- quired day shifts only at that point, CSC would put her on the Monday-to-Friday 250-day post. Havard filed a grievance against CSC, claiming CSC discriminated against her on the basis of family status, violating both the Canadian Human Rights Act and the collective agreement — the latter having an anti-discrimination clause that includ- ed family status as a protected ground. She argued that allowing her permanent shift changes came at no extra cost to CSC, as she had a regular trading partner, and was the best way to accommodate her childcare and family needs. Havard claimed $8,400 in costs she said she paid her nephew to look after her children when she worked night shifts — $350 per month from Au- gust 2014 to September 2016 — the rein- statement of any leave she used to cover night shifts during the same period, and $8,000 in damages for CSC's "wilful and reckless" application of its policy on shift exchanges while refusing her accommoda- tion request. Before Havard's grievance received a hearing, CSC once again allowed her to trade shifts and she resumed trading all her night shifts. 2 out of 3 not good enough to prove discrimination e Federal Public Sector Labour Rela- tions and Employment Board noted that in order to establish a prima facie case of discrimination, Havard had to prove three things: she met one of the prohib- FAMILY STATUS is a ground for which employers must try to accommodate their employees. While the extent of this protection seems to be in flux legally, it must include legal parental duties, not just an employee's desire for work-life balance. 4 CASE IN POINT: ACCOMMODATION BACKGROUND

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