Canadian Employment Law Today

Canadian HR Reporter, 2021 in Canada (Attorney General) v. Johnstone to prove family status discrimination: • A child is under the individual's care or supervision. • The childcare obligation engages the in - dividual's obligation for that child rather than personal choice. • The individual has made reasonable efforts to find alternative solutions and none are reasonably accessible • The workplace rule in question interferes with the childcare obligation in a manner that is more than trivial or insubstantial. The tribunal found there was no ques - tion that Smolik had sole custody of his two children, satisfying the first step of the test. His childcare obligation was "thrust upon him by his wife's death" and he accepted it. The children were young and mentally and emotionally affected by their mother's death and Smolik determined that he was the only suitable caregiver for them — something Seaspan didn't challenge, said the tribunal in finding that Smolik met the second step of the test. "Mr. Smolik is a sole parent and has no spouse or partner with whom to share his childcare obligations," said the tribunal. "His claim clearly relates to his childcare ob - ligations and not a personal choice." The tribunal also found that Smolik's as- sessment that it would be too much to expect relatives or a nanny to provide childcare for his children who had special emotional needs for one to three weeks at a time while he was at sea was reasonable. It was also unreason - able to expect them to care for the children on short notice with unstructured schedules. As it was, Smolik made a reasonable effort to find alternative childcare for when he received call-out shifts or a scheduled 12-hour relief pager shift, said the tribunal in finding that the third part of the test was met. Finally, the tribunal found that Smolik met the fourth part of the test, as Seaspan's solutions resulted in a significant loss of pay and his previous job duties on continuous- at-sea vessels weren't feasible. The work op - portunities and schedules made it "almost impossible" for Smolik to return to work without accommodation, the tribunal said. Undue hardship not reached The tribunal agreed that Seaspan's work schedule and practices were adopted for a purpose rationally connected to the perfor - mance of the job and adopted in an honest and good faith belief that they were necessary to fulfill the company's purpose. However, the company didn't reach the point of undue hardship before it stopped trying to accom - modate Smolik, the tribunal said. The tribunal found that the scarcity of call- outs that Smolik actually received showed that Seaspan didn't know whether the amount of work would be sufficient when it presented it as a return-to-work option, and it didn't do anything to change the situation until eight months later. The company didn't act with any urgency after Smolik raised the issue of accommodation, according to the tribunal. The tribunal also found that the offer of the dispatcher position wasn't reasonable as the company only gave Smolik a day to decide without giving him important infor - mation on the position. As for the media- tion agreement, Seaspan did not consult the union before or after it rejected the proposal and didn't make any more accommodation efforts after that proposal failed. The tribunal determined that Seaspan didn't live up to its duty to accommodate Smolik and therefore discriminated against him on the basis of family status. Seaspan was ordered to pay Smolik $15,000 for pain and suffering, compensation for loss of wag - es, benefits and pension contributions from 2014 to 2017 when he wasn't accommo- dated. The total damage award amounted to $507,038.75. For more information, see: • Andreas Smolik v. Seaspan Marine Corpora- tion, 2021 CHRT 11 (Can. Human Rights Trib.). • Canada (Attorney General) v. Johnstone, 2014 FCA 110 (F.C.A.). June 30, 2021 | Canadian Employment Law Today CREDIT: IAM ANUPONG iSTOCK

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