Canadian Employment Law Today

©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 EDITION of You Make the Call involves an Alberta government employee who wanted a transfer to remote work. Hal Griffith was a workplace health consul - tant of the Alberta Treasury Board and Finance (TBF) based in Edmonton. Before taking on the position, he held another position with another provincial government ministry in Calgary. When TBF hired Griffith in February 2016, he and his wife moved to Edmonton. They lived and worked in Edmonton for several months until the fall of 2016, when Griffith's wife accepted a position as a union occupational health and safety representative back in Calgary. She chose to move back and Griffith asked TBF if he could telecommute permanently from Calgary so he could join his wife there. TBF determined that it wasn't possible for Griffith to work remotely from Calgary, as many of his responsibilities required him to be in Edmonton, including: • All TBF clients supported by workplace health consultants were in Edmonton • Face-to-face meetings with clients were a significant part of Griffith's job duties • All other team members were in Edmonton and they provided absence coverage for each other • Griffith was the lead of a committee that required frequent, in-person meetings • Griffith would have to travel between Calgary and Edmonton frequently, which would exhaust the travel budget • There was no Calgary office space out of which Griffith could be based. Griffith felt that the requirement for face-to- face meetings was unreasonable and that, with remote computer access, the expense for him to telecommute wouldn't be much. He also said that other employees of the provincial govern - ment were allowed to telecommute. He felt that the reason his request was denied was because there was a concern about how it looked for him to be married to a union occupational health and safety representative, although TBF had been aware that his wife worked for the union throughout his employment. Griffith's director offered to look for other job opportunities with the provincial govern - ment in Calgary, but Griffith said that any job opportunity in Calgary would need to be provided by the spring because he "needed to get to Calgary within a reasonable timeframe to help care for my family." No positions were offered, so on Nov. 30, 2016, Griffith noti - fied TBF of his intent to retire and did so on Feb. 28, 2017. He also filed a human rights complaint claiming TBF discriminated him on the grounds of marital status and family status when it denied him his request to telecommute so he could move to Calgary with his wife. YOU MAKE THE CALL Did the employer have the right to deny the worker's request to telecommute from Calgary? OR Did the employer discriminate against the worker? IF YOU SAID the employer had the right to deny the worker's request and there was no discrimi- nation, you're right. The tribunal found that TBF had several business-related reasons to deny Griffith's request to telecommute and there was no evidence that Griffith's marital status or family status were factors in the decision — in fact, TBF had been aware of Griffith's marriage during the entire course of his employment. The tribunal also found that TBF looked for other job opportunities in Calgary but Griffith limited the search because of his short timeframe by spring 2017. Ultimately, Griffith chose to retire rather than continue working in Edmonton or wait for another job in Calgary, said the tribunal, adding that Griffith's mention of bias due to his wife's job was only speculation. "[Griffith's] choice to move to Calgary was a personal choice," said the tribunal. "The absence of support for [his] desire to telecom - mute from Calgary does not support an infer- ence that the complainant's protected charac- teristics were factors in the decision to deny the request to telecommute." The tribunal determined that Griffith's decision to retire was a personal choice and his marital and family status weren't factors in the denial of his request to telecommute. For more information. see: • Griffith v. Alberta Treasury Board and Finance, 2021 AHRC 52 (Alta. Human Rights Trib.). Alberta worker retires after remote work request Many of the worker's responsibilities required him to meet clients and co-workers in person.

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