Canadian Employment Law Today

Canadian HR Reporter, 2020 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases cause he wouldn't need to have someone look after her Monday to Friday. He was a single father and the mother wasn't able to care for their daughter or provide financial support. In addition, he had no family near - by who could help with child care. McClean worked the weekend shifts until November 2017 when Dare lost a contract and had to eliminate the Saturday 12-hour shift. All the other Saturday shift workers were moved to a Monday-to-Friday sched - ule, but McClean continued to work 12-hour shifts on Sundays and the company gave him eight-hour shifts on Wednesdays and Thurs- days from 7 a.m. to 3 p.m. paid at straight time and a lower rate due to the nature of the position. Every other week, the Thursday shift was changed to four hours on Tuesday and eight hours on Friday. Shift change meant less pay, more child care needed McClean complained about getting fewer hours than employees who were junior to him and was confused as to what days he would be working. He also noted that the new arrangement would result in another pay cut, as the 16 hours from the two new weekday shifts were less than the 12-hour Saturday shift at time and one-half. With the new shifts on weekdays, McClean needed daycare for his daughter. However, because he didn't work steady shifts, he was unable to get a subsidized daycare rate — he had to enroll his daughter for three steady workdays on order to qualify. McClean requested an additional shift to increase his hours and help with the day - care subsidy, but Dare denied the request as management didn't deem him to be a team player. He eventually found three babysitters for his daughter on weekdays and went back to weekend-only shifts after Feb. 12, 2018. However, McClean filed a human rights complaint alleging that Dare discriminated against him because of family status. The tribunal noted that it had been estab - lished in case law that family status under human rights legislation "covers childcare obligations engaging a legal responsibility to a child." In addition, any negative impact on a family need from an employer's actions "must result in a real disadvantage to the parent-child relationship and the responsi - bilities that flow from that relationship and/ or to the employee's work," said the tribunal. The tribunal added that accommodation involved obligations for both the employer and the employee and employees were re - sponsible "for initiating the accommoda- tion process by clearly stating the need for family status accommodation and identify- ing the specific needs/requirements." The tribunal found that Dare was aware that McClean had a young daughter as he was away from work for one year on critical ill child-care leave and parental leave. In addition, the week - end-shift arrangement came about because of McClean's need to care for his child. However, the tribunal found that after the Saturday shift was eliminated and McClean was moved to some weekday shifts, he didn't specifically request accommodation due to his family status. McClean raised the issue of lost income due to reduced hours and the lower wage rate for the weekday shifts, but he didn't say he needed an extra weekday shift to qualify for subsidized day care or state that he was having child-care problems. He also didn't provide evidence that getting the extra shift would have specifically resulted in him receiving a subsidized daycare spot, added the tribunal. No evidence of adverse impact to parental obligations The tribunal also found that, despite the fact that the shift change made things more dif - ficult for McClean, he was still able to work. He was able to find babysitters for his daugh- ter and he had to pay more for child care, but there was no indication this caused "an actual disadvantage to his and his daughter's relationship" or McClean's parental respon - sibilities. Instead, McClean's main concern was the impact the shift change had on his financial position, said the tribunal. "The shift change did not put [McClean] in a position of having to choose between his job and caring for his daughter, or negatively impact his and her relationship and the re - sponsibilities that flow from their relation- ship in a significant way," said the tribunal. "There is no evidence that it significantly in- terfered with his obligations to his daughter or that he was unable to meet his child care obligations." The tribunal determined that McClean's request for more hours and shifts was related to others with less seniority getting day shifts and the pay cuts. As a result, McClean's issues with the shift change "appear to be related to pay as opposed to an issue based on the [Ontario Human Rights Code] and, without a formal request for accommodation, there was no requirement for Dare to investigate accommodation options, the tribunal said. For more information, see: • McClean v. Dare Foods Limited, 2019 HRTO 1544 (Ont. Human Rights Trib.). « from SHIFT CHANGE on page 1 More expensive child care not a disadvantage in parental relationship arrange one's life to be available to return to work on short notice. Directly addressing pay provisions for on-call work may be important in collective bargaining. In the Alberta arbitration deci - sion Maple Leaf Mills Inc. v. U.F.C.W., Lo- cal 401, the employer issued pagers to two maintenance employees and required them to remain on call. The union said that the employees were entitled to pay for all hours outside working hours when the employees were outside the plant and required to re - main on call under the threat of suspension or dismissal if they failed to respond to the pager. The arbitrator, noting that the collec- tive agreement lacked an on-call pay provi- sion, dismissed the grievance, saying that "it would be totally inconsistent to say that an employee on standby will receive a premium call-in pay when, on the union's claim, the employee would already be entitled to over - time pay for the hours he stood by in the off chance of being called in." For more information, see: • Walker v. Alberta Communications Cable Services Inc., 2018 ABPC 46 (Alta. Prov. Ct.). • SRJ Expedite Ltd. v. Paré, 2009 CanLII 70498 (Can. Lab. Code Adj.) • Bell v. LTS Solutions Inc., 2012 CLAD 275 • Hands On Cart Wash Inc. v. British Colum - bia (Director of Employment Standards), 2000 CarswellBC 4669 (B.C. Emp. Stds. Trib.). • Annapolis Valley District Health Authority and N.S.G.E.U., 2008 CanLII 92117 (N.S. Arb.). • Sunrise Health Region and HSAS (EMS standby), Re, (2014) 247 LAC (4 th ) 350 (Sask. Arb.). • Maple Leaf Mills Inc. v. U.F.C.W., Local 401, (1995) 50 L.A.C. (4 th ) 246 (Alta. Arb.). Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@ stewartmckelvey.com. No work, no pay « from ASK AN EXPERT on page 2

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