Canadian Employment Law Today

6 | April 29, 2015 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends Employer rule imposed unequal burden e father of her first son was no longer able to provide any childcare assistance and the father of her younger son had no involve- ment. She had no family in Fort McMurray, so she had to rely completely on third-party childcare for both her children. SMS refused the worker's request, saying it couldn't accommodate her. In March 2013, the worker explained to SMS that she had found childcare 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 received little support from either of her sons' fathers. In May 2013, the union requested a shift modification for the worker and another welding apprentice who was willing to work exclusively night shifts. SMS denied the re- quest and the union filed a grievance claiming discrimination based on family status. An arbitrator found that family status in- cluded childcare responsibilities and SMS' rule that welders must work night shifts "has the effect of imposing a burden on (the worker) due to her childcare responsibili- ties that is not imposed upon welders who do not share her status." is disadvantage created a prima facie case of discrimination which SMS was required to prove it could not accommodate without undue hardship. e arbitrator found SMS provided no evidence to justify its rule requiring the worker to work rotating night and day shifts and ordered the company to accommodate her with a straight day shift. SMS appealed to the Alberta Court of Queen's Bench, arguing it did not have an obligation to accommodate the worker' parenting demands and the arbitrator im- properly incorporated financial elements to childcare obligations. Firstly, the court found it was reasonable to include childcare obligations — and their cost — in the meaning of family status. "It seems to me that it is practically im- possible to avoid a financial aspect to (child- care) obligations in general," said the court. 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 spending a lot of money on childcare — the worker ex- perienced that other welders didn't, due to her status as a single parent. ese adverse effects were a direct result of the practice of rotating day shifts and night shifts on the seven-day work tours. is adverse ef- fect wouldn't change if the worker had help from the fathers of her children, because she would still have to spend more money on childcare while she wasn't at work but needed to sleep, said the court. e court pointed to the test for prima facie discrimination based on family status established by the Federal Court of Appeal in Johnstone v. Canada: • A child is under the employee's care • e childcare obligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice • e employee has made reasonable ef- forts to meet those childcare obligations through reasonable alternative solutions • e impugned workplace rule interferes in a manner that is more than trivial or insub- stantial with the fulfillment of the childcare obligation. e court agreed that the worker' cir- cumstances met this test, placing the onus on SMS to prove there was a bona fide occu- pational requirement for rotating shifts. e court also agreed with the arbitrator's prin- ciples that the choices to become a working parent "do not negate a claim of discrimina- tion" and it was reasonable to expect em- ployers to develop rules and policies that help share the burden of family responsibili- ties and not impede the "full participation in the workforce" of working parents. e court also found the worker was sole- ly responsible for the care of her children, not through choice but through the circum- stance created by the lack of support from their fathers. She had no family in Fort Mc- Murray and paid childcare was her only op- tion, which she had reasonably investigated. e court upheld the arbitration deci- sion, finding there was no evidence that the worker couldn't be accommodated by putting her on straight day shifts. See MS Equipment v. CEP, Local 707, 2015 Carswel- lAlta 385 (Alta. Q.B.); Johnstone v. Canada (Border Services Agency), 2014 CarswellNat 1415 (F.C.A.). « from CHILDCARE on page 1 Other workers annoyed further announcements for volunteers, to the point where the employee found it "ag- gressive and annoying." Kaszyca also asked another CSM to free up space on the flight, suggesting a passen- ger bound for London via Rome be put on a direct flight to London. e CSM refused. More than two hours before the depar- ture time, Kaszyca told the gate employee to go to the gate and deal with "busted" passengers — those who were unable to make the flight who were connecting from a flight from Toronto. e employee felt the passengers could still make the flight and refused. Kaszyca then informed the pas- sengers herself that they missed their con- nection because their baggage couldn't be transferred in time, which didn't make sense to the gate agent — there was still more time than the minimum required to make an in- ternational connection. A customer service representative ar- rived at the gate one hour before departure of the Rome flight to find Kaszyca at the counter searching stand-by lists and con- nections. Kaszyca asked her to speak to the captain for authorization to give Ventola's mother one of the two seats allocated to the crew for international flights. e represen- tative refused and Kaszyca went to the cap- tain herself, but was rebuffed. e gate employee reported what was happening to the manager of general op- erations. e manager knew Kaszyca and Ventola were friends, so she launched an investigation. Kaszyca was suspended with pay during the investigation. Neither Kaszyca or Ventola admitted they did anything wrong, but the investiga- tor determined there was enough "circum- stantial information" and witness reports to find Kaszyca acted improperly and served to create a "potentially poisoned work at- mosphere for the subordinate employees involved, embarrass the company and em- ployees and create a situation of frustration, anger and resentment on the part of the travelling public towards Air Canada." Air Canada dismissed Kaszyca effective Sept. 19, 2013, for violating the code of con- duct. Ventola had her employee travel privi- leges suspended for one year. e adjudicator found "there is no doubt Ms. Kaszyca was attempting to have Ms. Ventola's mother board the flight to Rome… ere is also little doubt that her efforts would not have been undertaken had Ms. Ventola not been a friend and colleague." In addition, her repeated questioning of other employees had a negative impact on the work environment, said the adjudicator. is warranted "severe disciplinary ac- tion," but since Kaszyca had no previous discipline on her record, a lesser sanction that would serve as a reminder to act more scrupulously would be more appropriate, said the adjudicator. Air Canada was ordered to reinstate Kaszyca with a suspension of three months without pay in place of dismissal. See Kaszy- ca and Air Canada, Re, 2015 CarswellNat 577 (Can. Adj. (Can. Labour Code Pt. III). « from AIR CANADA on page 1

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