Canadian Employment Law Today

ing Monday, a typically heavy mail day. Weber felt she had made no such commitment as this would be impossible to do without overtime, mak - ing her unable to pick up her daughter after work. She filed another grievance. Weber felt she was under increased scruti- ny and on Jan. 10, 2012, before she left to de- liver mail, she was given a notice of interview to discuss her "departure and end time… and your overall job performance." ings esca- lated with Weber telling the staffing officer to "mind your own business." Weber was given an suspension for insubordination, but this was later removed from her record. At the interview, Weber was told allega - tions of time-wasting had been made against her. Weber suspected the staffing officer was the source of the allegations and nothing came of the interview. Weber complained to the area manager of continuing harassment and the area man - ager responded with a letter stating the cor- poration was willing to accommodate her from performing overtime for one month up to March 2, 2012, so she could make the nec- essary childcare arrangements to perform her duties, including overtime, in the future. Weber filed another grievance implying dis- crimination based on family status. Weber took steps to self-accommodate by bidding on a position as a relief letter carrier and then another full-time position at a de - pot in Waterloo, Ont. e arbitrator found Weber's childcare needs "fit clearly within the definition of 'family status'" as defined by the Federal Court of Appeal in Canadian National Rail - way Co. v. Seeley and other decisions. Weber incurred legal obligations to her child and the daycare centre that required her to pick up her daughter by 4 p.m. ough emer - gency arrangements could be made occa- sionally, "repeated failure to meet the pickup time would undoubtedly mean that the child would be asked to leave the daycare," a situ- ation that would happen if Weber was asked to perform all necessary overtime on her route, said the arbitrator. e arbitrator also found that Weber had already made arrangements to balance her work and childcare obligations and it was Canada Post's restructuring that "upset the balance." ere were no other childcare ob - ligations available to Weber, other than a transfer to another depot with a different schedule, which Weber ultimately did seek. "I do not think it was reasonable to expect (Weber) to change the established routines that permitted her to be both a mother and an employee," said the arbitrator. "Even if al - ternatives had been available, I do not think it would have been unreasonable for (Weber) to resist making such changes if not abso- lutely necessary." e arbitrator also found the route assess- ment was flawed and didn't address the is- sue causing the need for frequent overtime on the route. As a result, even when it was obvious "the process had gone off the rails," nothing was done to fix it, said the arbitrator. e arbitrator determined that Canada Post's initial demand for Weber to perform overtime on her route was discrimination based on family status. When the corpora - tion rescinded the requirement, it began ac- commodating her. However, its ultimatum that she find alternate childcare arrange- ments so she could work overtime halted the accommodation and discriminated against her once again. In addition, the various meetings and corrective actions regarding her performance and attendance caused We - ber anxiety and stress, said the arbitrator. e arbitrator ordered Canada Post to pay Weber $6,500 for pain and suffering from the discrimination, noting there was no medical diagnosis regarding her stress. e arbitra - tor declined to award any punitive damages, noting that Canada Post "proceeded based on its understanding of the law, and for the most part got it right" with no wilful or reck - less conduct on its part. For more information see: • Canada Post Corp. and CUPW (Weber), Re, 2016 CarswellNat 949 (Can. Arb.). • Canadian National Railway Co. v. Seeley, 2014 CarswellNat 1421 (F.C.). CREDIT: IMILIAN/SHUTTERSTOCK Canadian HR Reporter, a Thomson Reuters business 2016 June 22, 2016 | Canadian Employment Law Today ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www. employmentlawtoday.com for more information.

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