Canadian Labour Reporter

May 15, 2017

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS ity to foster a positive work-life balance. In January 2013, Guilbault emailed his manager with a "re- quest for accommodation based on the Canadian Human Rights Act." The request related to Guil- bault's family — his spouse had health problems and two of his four children had development difficulties. Guilbault asked for accommo- dation of his need to help take care of his family at the end of the day, by being allowed to take his two paid 15-minute breaks — allotted by the collective agreement — to- gether at the end of the workday so he could leave 30 minutes ear- lier. He also invited the manager to contact the labour relations adviser to "explain to you the ins and outs of an employer's duty to accommodate." Guilbault stated this accommo- dation was needed to reduce the amount of tasks his spouse had to do during the day and allow him to help her in taking care of the chil- dren after school and daycare. He noted he took care of the children for more than an hour every morning from when they wake up to when he goes to work, but his spouse took care of them from 4 p.m. until he arrived home at 7:15 p.m. The manager was surprised by the formality of Guilbault's request since she had previously granted the possibility of modify- ing his schedule. She consulted the human resources and labour relations departments. On Jan. 16, she met with Guil- bault to clarify his needs and dis- cuss different solutions — such as a compressed workweek, a variable schedule, part-time em- ployment, starting earlier, driv- ing to work instead of taking the commuter train or changing day- cares. However, Guilbault refused all of these options for various rea- sons, such as financial concerns or that it still wouldn't allow him any more time at home. However, the manager insisted he couldn't take his two breaks to- gether at the end of the day, as they were described in the collective agreement to be rest periods to be taken during the day for occupa- tional health and safety reasons. Parties unable to reach solution They couldn't reach a solution and Guilbault filed a grievance on March 20, 2013, claiming DND's refusal to find a "reasonable ar- rangement to accommodate my needs" and modify his work hours was discrimination based on fam- ily status, contrary to the Cana- dian Human Rights Act and the collective agreement. DND rejected Guilbault's grievance, finding there was no duty to accommodate in these cir- cumstances. However, the man- ager still wanted to help Guilbault, so she suggested they meet again to discuss options regarding his unpaid lunch break. The manager proposed that Guilbault take his two 15-minute paid breaks back-to-back with a one-minute interval, during which he could eat, and then take the unpaid 30-minute lunch at the end of the day. However, Guilbault reacted negatively to the proposal and es- calated the grievance. On Jan. 9, 2014, DND's direc- tor general of workplace man- agement refused to find any dis- crimination but granted Guilbault permission to leave the workplace 30 minutes early each day "to meet your important family obligations at home" by moving his lunch break to the end of the day. Guilbault was disappointed since there was no acknowledge- ment of any discrimination, nor was there any indication he could combine his two paid breaks to have 30 minutes for lunch during the day. He refused to meet with his manager on how to implement the decision or sign a form. He took his case to the board and said he would continue to take his two breaks and 30-minute lunch pending a decision. In August 2014, Guilbault filed a harassment complaint against his manager. DND determined it was unfounded, but a supervisor acknowledged Guilbault was un- happy and proposed combining Guilbault's two paid breaks to cre- ate a half-hour lunch and allowing him to take his half-hour unpaid lunch at the end of the day. Guilbault accepted the offer, but maintained his complaint. The board noted that Guil- bault's accommodation request was "not based on most employ- ees' general desire to spend more time with their families," but in- stead was "based on what he felt were needs protected by the (Ca- nadian Human Rights Act) under the heading 'family status' — the health problems of his spouse and two of his children." Though his manager initially recommended he review his "family planning" they eventually came upon a pos- sible solution. The board found that the rea- son for Guilbault's request wasn't necessarily childcare, but rather his spouse's health. Guilbault not being able to arrive home earlier didn't involve his legal responsi- bility towards his children, but rather just wanting to help his spouse. However, there was no evidence they investigated the possibility of getting outside help, said the board. "The fact remains that the em- ployer cannot have a legal respon- sibility for the functioning of the family," said the board. "The em- ployer's work rule must hinder the employee from fulfilling a legal obligations toward the children." As a result, DND's initial refusal to grant Guilbault's request didn't hinder his ability to meet his legal obligations towards his family, so there was no discrimination, said the board. The board also found that when DND finally did provide accom- modation, it wasn't a legal obliga- tion but rather a moral one to help the employee seek a work-life bal- ance in good faith. The length of time it took to im- plement the solution was not the employer's fault, but rather be- cause of "the inability of the peo- ple involved to agree" — including Guilbault's "refusal to enter into discussions," said the board. It acknowledged the case was "borderline," but DND didn't dis- criminate because Guilbault's children weren't in danger and his legal obligations were met. The grievance was dismissed. For more information see: • Guilbault c. Conseil du Trésor (Ministere de la Défense natio- nale), 2017 CarswellNat 446 (Can. Pub. Service Lab. Rel. & Emp. Bd.). < Accomodation pg. 1 'Borderline' case hinged on entire family situation: Arbitrator Photo: Soloviova Liudmyla (Shutterstock)

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