Canadian HR Reporter

CANADIAN HR REPORTER May 4, 2015 EMPLOYMENT LAW 5 Jeffrey Smith Legal View You are invited to a free HR Seminar Tel 416.603.0700 | 24 Hour 416.420.0738 | Fax 416.603.6035 | www.sherrardkuzz.com DATE: Thursday May 28, 2015; 7:30 – 9:30 a.m. (breakfast at 7:30 a.m.; program at 8:00 a.m.) VENUE: Mississauga Convention Centre 75 Derry Road West, Mississauga, L5W 1G3 COST: Complimentary RSVP: By Friday May 15, 2015 at www.sherrardkuzz.com/seminars.php presented by *** Law Society of Upper Canada CPD Hours: This seminar may be applied toward general CPD hours. *** HRPA CHRP designated members should inquire at www.hrpa.ca for eligibility guidelines regarding this HReview Seminar. Here For a Good Time - Not a Long Time Navigating the Risks of Interns, Volunteers, Temps and Student Employees As we approach the summer of 2015, many organizations will look to beef up staff on short-term or experience-based engagements. However, as a result of increased scrutiny and legislative change, some traditional staffing solutions may attract new and potentially harmful risks. Join us as we discuss how your organization can strategically prepare for the upcoming summer: Ranked In Leading Firm CHAMBERS GLOBAL 2014 2013 RANKED 1) The "Unpaid Intern" Story • When is it lawful to hire an unpaid intern? • Co-op students vs volunteers vs interns: What's the difference and why does it matter? • What are the risks? • How to use a contract or engagement letter to minimize risk. 2) Temporary Employees and Summer Students • ESA? WSIB? OHSA? What applies and what doesn't? • Legislative changes to "minimum wage" (ESA) and the definition of "worker" (OHSA). • Setting expectations at the time of the engagement. • How to transition to full-time employment – or end the relationship early. Alberta worker wins accommodation for childcare, avoids night shift Employer couldn't explain why straight day shifts couldn't be accommodated An Alberta company discriminated against a worker who was a single mother of young children when it refused to ac- commodate her request for day shifts only, the Alberta Court of Queen's Bench has ruled. SMS Equipment was a supplier of equipment and equipment service to the construction, mining and petrochemical industries in Fort McMurray, Alta. e worker was a first-year apprentice welder who started employment as a labourer with SMS in November 2010. The woman's job involved working 14 days on, followed by 14 days off, with rotating day and night shifts for each 14-day stretch of work. e worker had moved to Fort McMurray from Newfound- land and Labrador and she had a young son who remained behind for a few months before joining her. e son's father also moved to Fort McMurray but did not live with the worker. He some- times cared for the child when the worker worked. In February 2012, the worker gave birth to a second son fa- thered by a different man. While on maternity leave, she applied for a first-year welder position, which had shifts of "seven days on and seven days off with rotating tours of days and nights." She won the job and returned to SMS in the new position in No- vember 2012, several months be- fore her maternity leave expired. Balancing shift work, childcare too much for worker One week later, after a seven-day tour of night shifts, the worker requested her tours be changed to straight day shifts since she was finding it difficult to balance her childcare needs. e father of her first son had changed his work schedule and was no lon- ger able to provide any childcare assistance. e father of her younger son had no involvement with his child and she had no family in Fort Mc- Murray, so she had to rely com- pletely on third-party childcare for both her children. SMS refused the worker's re- quest, saying it couldn't accom- modate her. In March 2013, the worker spoke to an HR representative, explaining she had found child- care for her two sons but it was too expensive to pay for both nights when she worked and days when she slept. As a result, she looked after her kids herself during the day when on the night shift and got "very little sleep." She also mentioned she re- ceived little to no support either financially or for childcare from either of her sons' fathers. In May 2013, the union re- quested a shift modification for the worker and another welding apprentice who was willing to work exclusively night shifts while the worker could work only days. SMS denied the request and the union filed a grievance claiming discrimination based on family status, which was contrary to the collective agreement and the Al- berta Human Rights Act. Arbitration, then appeal looks at family status An arbitrator concluded family status included childcare respon- sibilities and SMS' rule that weld- ers must work night shift "has the effect of imposing a burden on (the worker) due to her childcare responsibilities that is not im- posed upon welders who do not share her status." This disadvantage created a prima facie case of discrimination based on family status that SMS was required to prove it could not accommodate without undue hardship. e arbitrator found SMS pro- vided no evidence to justify its rule requiring the worker to work rotating night and day shifts and ordered the company to accom- modate her by allowing her to work a straight day shift. SMS appealed the decision to the Alberta Court of Queen's Bench, arguing it did not have an obligation to accommodate the worker's parenting demands and the arbitrator improperly in- corporated financial elements to childcare obligations. Firstly, the court found it was reasonable to include childcare obligations — and their costs — in the meaning of family status. "It seems to me that it is practi- cally impossible to avoid a finan- cial aspect to (childcare) obliga- tions in general," said the court. "To the extent that reasonable costs of childcare are implicated in the performance of childcare obligations, this financial com- ponent does not detract from the meaning of 'family status.'" e court also agreed that it had been established there was a prima facie case of discrimination based on adverse effects — the choice of going sleepless or spend- ing significant amounts of money on childcare — the worker expe- rienced that other welders didn't, due to her status as a single parent of two small children. ese adverse effects were a di- rect result of the company's prac- tice of rotating day shifts and night shifts on the seven-day work tours. This adverse effect wouldn't change if the worker had help from the fathers of her children, received government subsidies or drove a cheaper car because she would still have to spend more money on childcare while she wasn't at work but needed to sleep, said the arbitrator, which was agreed upon by the court. Test for family status discrimination met The court pointed to the test for establishing a prima facie case of discrimination based on family status established by the Federal Court of Appeal in John- stone v. Canada (Border Services Agency): • A child is under the employee's care and supervision. • e childcare obligation at issue engages the individual's legal re- sponsibility for that child, as op- posed to a personal choice. • e employee has made reason- able efforts to meet those child- care obligations through reason- able alternative solutions. • e impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the child- care obligation. e court agreed with the ar- bitrator that the worker' circum- stances met this test, placing the onus on SMS to prove there was a bona fide occupational require- ment or undue hardship prevent- ing accommodation. The court also agreed with the arbitrator's principles that the choice to become a working parent — or single working par- ent — "do not negate a claim of discrimination" and it was rea- sonable to expect employers to develop rules and policies that further the purpose of sharing the burden of family responsibili- ties and do not impede the "full participation in the workforce" of working parents. e court also found the work- er was solely responsible for the care of her children, not through choice but through the circum- stance created by the lack of sup- port from their fathers. She had no family in Fort McMurray to whom she could turn and paid childcare was her only option, which she had reasonably inves- tigated, said the court. e court upheld the arbitra- tion decision, finding there was no evidence the worker couldn't be accommodated by putting her on straight day shifts. For more information see: • SMS Equipment v. CEP, Lo- cal 707, 2015 CarswellAlta 385 (Alta. Q.B.). • Johnstone v. Canada (Border Ser- vices Agency), 2014 CarswellNat 1415 (F.C.A.). Jeffrey R. Smith is the editor of Ca- nadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@ thomsonreuters.com or visit www. employmentlawtoday.com for more information. e court agreed it had been established there was a prima facie case of discrimination based on adverse effects the worker experienced that others didn't.

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