Canadian Employment Law Today

Canadian HR Reporter, 2021 4 Employer spent three years providing inadequate accommodation options to single father and then stopped trying when agreement fell through B.C. worker gets $500,000 for family status discrimination A BRITISH Columbia company must pay an employee who was a single father more than $500,000 when it failed to accommodate his childcare needs that didn't fit with the normal operating schedule, the Canadian Human Rights Tribunal has ruled. Andreas Smolik was a marine engineer employed with Seaspan Marine Corpora - tion, a marine transportation company serv- ing the west coast of North America with ship escorting and towing services. Due to the nature of its business, some of its boats are at seas for 12 hours, while some sail con- tinuous for one to three weeks at a time. Smolik joined Seaspan in 1997, working 12-hour shifts on vessels chartered by Seas- pan for another company. He worked five to seven days a week and sometimes covered colleagues with overtime shifts. He married his wife in 2001 and they had children in 2003 and 2006. Smolik's wife was able to work flexible hours, so between the two of them they could handle childcare them - selves. However, Smolik's wife became seriously ill in 2011 and in March 2013 Smolik took a leave of absence from Seaspan to care for her and their two children. His wife passed away in May 2013 and Smolik went on be - reavement leave. At that point, he was the sole caregiver for his two young children, who both had difficulty with their mother's death. In September 2013, Smolik thought the emotional state of his children had im - proved enough that he could return to work. He told Seaspan that he couldn't work on their coastal vessels because he had few childcare options and he couldn't be away from them for the two to three weeks re - quired for those vessels. He explained that he needed either a job like his previous one with 12-hour shifts or a flexible schedule al- lowing him to pick up his kids from school. However, while he was on leave, the two coastal ferries on which he had worked had left Seaspan's fleet. Smolik trusted his brothers as suitable caregivers who could meet his children's emotional needs, but they weren't able to look after them for extended periods. He considered hiring a nanny, but didn't feel he could trust someone to look after them for multiple weeks at a time or on an erratic schedule. He was able to find alternative childcare for several hours or overnight if he took a call-out shift or a 12-hour fill-in shift, but such an arrangement didn't work long-term. Discussed accommodation options Smolik discussed the option of going on a call-out list for flexibility to turn down call - outs that didn't fit with his schedule and reminded Seaspan of its duty to accommo- date his family status. In January 2014, he accepted a proposal for call-out work at two locations only for one year that would be re- viewed after six months. The list was called on the basis of seniority and Smolik believed he would end up getting close to full-time income out of it while accommodating his schedule. However, from January to August 2014, Smolik only received seven call-outs. He re - viewed the call-out agreement with Seaspan in June and said it hadn't provided him with sufficient work. He mentiond that he didn't recall turning down any calls; he just didn't receive very many. Things didn't improve much after the re - view, as Smolik only received eight call-outs and some limited dockside maintenance work from September to December 2014. Over the first four months of 2015, he re- ceived nine call-outs and accepted the ma- jority of them. In early January 2015, Smolik discussed a marine dispatcher job with Seaspan. The company didn't provide any information about the pay scale, compensation, or hours of work and told him it would allow him to maintain his marine engineer certificate. However, the company told him he had to respond to the offer by the next day. Smolik turned it down because he didn't want to lose his certification. In March 2015, Smolik requested and was granted a one-year leave of absence to seek a full-time job elsewhere. He found a posi - tion as a marine engineer on ferries, which lasted until June when the employee he was replacing returned. Smolik proposed to Seaspan that he work a Wednesday-to-Wednesday relief pager po - sition on four specific vessels in addition to the random call-out list, which he felt would give him enough work to employ him full- time. However, Seaspan said that most relief pager jobs went to high-seniority engineers and he wouldn't get much work out of it. He also suggested holiday relief work at two locations, but Seaspan declined. Smolik also inquired about working for Seaspan Ferries, but that company didn't want any past Seaspan Marine employees who had worked on vessels previously on loan to its ferries to return. Smolik filed a human rights complaint, claiming that Seaspan Marine treated him in an adverse differential manner on the basis of family status by failing to accommodate him with a work schedule that would allow him to fulfil his childcare obligations. Seaspan negotiated an agreement with Smolik for a one-week on, one-week off schedule in which he would be available for call-out and relief work at two loca - tions with first right of refusal until he met his monthly hours for full-time income for the "on" week, and call-out work based on his regular seniority level on the "off" week. However, the union didn't support the set - tlement because it said it contravened the collective agreement. The agreement was abandoned and Seaspan didn't make any further efforts to find Smolik work. 4-part test for family status discrimination The tribunal referred to the four-part test established by the Federal Court of Appeal CASE IN POINT: HUMAN RIGHTS Family status is a protected ground from discrimination under human rights legislation. While the phrase can be a little ambiguous, when it comes to employees, it often refers to childcare obligations. Various court decisions have established the bar for family status accommodation and if an employer doesn't meet it, it can get expensive. BACKGROUND BY JEFFREY R. SMITH The employer didn't know whether the amount of work would be sufficient when it presented the return-to-work option.

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