Canadian Employment Law Today

CELT August 21 2013:celt 467.qxd 13-09-16 9:50 AM Page 4 August 21, 2013 CASE IN POINT: ACCOMMODATION Parental duties not just a personal choice, require accommodation: Court CN's appeal of discrimination finding dismissed; must pay $35,000 and lost wages to employee with kids who refused assignment BACKGROUND Personal choice or protected ground? IN RECENT years, there has been a lot of discussion over family status as a ground for discrimination. It's been included in human rights legislation along with things like race, religion and background, but hasn't really been defined. Increasingly, courts and arbitrators are finding parental responsibilities should be included in the elements of family status that should be protected from discrimination. Though some employers argue having children and living in a specific area with child care limitations is a personal choice, they're finding they may still have a duty to accommodate when an employee has a conflict between work and their parental duty. | BY JEFFREY R. SMITH | THE FEDERAL Court has upheld a Canadian Human Rights Tribunal ruling that the Canadian National Railway (CN) discriminated against an employee who had child care responsibilities. Denise Seeley was a freight train conductor for CN based out of Jasper, Alta. Seeley had been hired in 1991 and became a conductor two years later. Her husband also worked for CN as a locomotive engineer and they had two children, born in 1999 and 2003. They lived in a town 98 km from Jasper. In 1997, Seeley was laid off. As part of the collective agreement, she continued to accumulate seniority and performed occasional work for CN on emergency calls. The collective agreement also allowed CN to protect against labour shortages in particular terminals by recalling laid-off employees, in order of seniority, with 15 days' notice. In February 2005, CN faced a shortage of conductors at its Vancouver terminal. The railway recalled 47 laid-off employees to cover the shortage. Seeley was one of these employees and was 4 given notice on Feb. 26, 2005. Seeley first requested a 30-day extension of the reporting deadline and then wrote to CN requesting to be relieved from the Vancouver assignment. Her reasoning was that she had two young children, six years old and 21 months, with no immediate family nearby to help care for them. Local daycare options only took care of regular business hours and her husband was away at work for 14 to 24 hours at a time. When Seeley initially requested the 30-day extension, she explored various child care options but was unsuccessful in finding anything suitable. At that point, she asked to be relieved due to her child care responsibilities. Child care responsibilities a personal matter: Employer CN maintained that Seeley was required to report to Vancouver under the collective agreement, though it extended her reporting date three times until June 30, 2005. It finally asked her whether she was going to report and if she didn't, her employment would be terminated. Seeley responded by saying she was waiting for a decision on her request for compassionate allowance. On July 4, 2005, CN terminated Seeley's employment for failing to cover the shortage in Vancouver as requested. Seeley filed a complaint of discrimination based on family status with the Canadian Human Rights Commission. The Canadian Human Rights Tribunal found family status included child care obligations, and Seeley had established a prima facie case of discrimination based on family status. CN's requirement for her to cover the Vancouver shortage made it impossible to arrange for appropriate child care and Seeley's parental duties and obligations made her unable to fully and equally participate in employment with CN, due to the railway's rules and practices, said the tribunal. The tribunal also found CN had "a comprehensive accommodation policy" and the collective agreement allowed for CN to exempt employees from covering shortages if they had a "satisfactory reason." CN's failure to investigate accommodations options contributed to the discrimination, said the tribunal. In a September 2010 decision, the tribunal ordered CN to reinstate Seeley without loss of seniority and pay her $35,000 in damages plus lost wages and benefits. CN appealed the decision to the Federal Court, arguing the balancing of family life obligations – resulting from an employee's personal choice -and employment duties shouldn't be transferred from the home to the workplace. Human rights legislation cannot intend that "an employee could choose Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 5

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