Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2017 Cases and Trends Family status accommodation has its limits Employee's desire to help spouse with health issues care for special- needs children doesn't invoke legal obligation for employer: Board BY JEFFREY R. SMITH A FEDERAL government employee's re- quest to get home 30 minutes earlier to help his spouse care for special-needs children did not invoke a legal obligation to accom- modate based on family status, the Canada Public Service Labour Relations and Em- ployment Board has ruled. Pascal Guilbault was a lawyer who was hired by the Department of National De- fence (DND) in October 2011 to be a claims officer. e first few years of his tenure with DND went smoothly and he had a good rela- tionship with his manager, who made it clear she was open to requests for flexibility to fos- ter a positive work-life balance. In January 2013, Guilbault emailed his manager with a "request for accommodation based on the Canadian Human Rights Act." e request related to Guilbault's family — his spouse had health problems and two of his four children had development difficul- ties. Guilbault asked for accommodation 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 — together at the end of the workday so he could leave 30 minutes earlier. He also invited the manager to con- tact the labour relations adviser to "explain to you the ins and outs of an employer's duty to accommodate." Guilbault stated that this accommodation was needed to reduce the amount of tasks his spouse had to do during the day and al- low him to help her in taking care of the chil- dren after school and daycare. He noted that he took care of the children for more than an hour every morning from when they woke up to when he went to work, but his spouse had them all from 4 p.m. until he arrived home at 7:15 p.m., which was a lot for some- one with health issues. e manager was surprised by the formal- ity of Guilbault's request since she had pre- viously granted the possibility of modifying his schedule. It made her uncomfortable, so she consulted the human resources and la- bour relations departments. On Jan. 16, she met with Guilbault to clarify his needs and discuss different solutions — such as a com- pressed workweek, a variable schedule, part- time employment, starting earlier, driving to work instead of taking the commuter train, or changing daycares. 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 together at the end of the day, as they were described in the collec- tive agreement to be rest periods to be taken during the day for occupational health and safety reasons. Parties unable to reach solution ey couldn't reach a solution and Guilbault filed a grievance on March 20, 2013, claim- ing DND's refusal to find a "reasonable ar- rangement to accommodate my needs" and modify his work hours was discrimination based on family status, contrary to the Ca- nadian Human Rights Act and the collective agreement. DND rejected Guilbault's grievance, find- ing there was no duty to accommodate in these circumstances. However, the man- ager still wanted to help Guilbault, so she suggested that they meet again to discuss options regarding his unpaid lunch break — which the collective agreement stated must be provided to allow employees to recharge and eat, but didn't mention a specific dura- tion. e 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-min- ute lunch at the end of the day. However, Guilbault reacted negatively to the proposal, believing he couldn't combine his two paid breaks and he wouldn't have enough time to eat his lunch. He then took his grievance to the next level. On Jan. 9, 2014, DND's director general of workplace management refused to find any discrimination but granted Guilbault per- mission to leave the workplace 30 minutes early each day "to meet your important fam- ily obligations at home," by moving his lunch break to the end of the day. Guilbault was disappointed since there was no acknowledgement of any discrimina- tion, nor was there any indication he could combine his two paid breaks to have 30 min- utes for lunch during the day. He also didn't trust his manager any longer, so he refused to meet with her 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 harass- ment complaint against his manager. DND determined it was unfounded, but a super- visor acknowledged Guilbault was unhappy and proposed combining Guilbault's two paid breaks to create a half-hour lunch and allowing him to take his half-hour unpaid lunch at the end of the day. Guilbault accept- ed the offer, but maintained his discrimina- tion complaint. e board noted that Guilbault's accom- modation request was "not based on most employees' general desire to spend more time with their families," but instead was "based on what he felt were needs protected by the (Canadian Human Rights Act) un- der the heading 'family status' — the health problems of his spouse and two of his chil- dren." ough his manager initially recom- mended he review his "family planning" — to which Guilbault took offence — they eventually came upon a possible solution. However, this solution wasn't initially ad- opted and led to months of acrimony. e board found that the reason for Guil- bault'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 responsibility towards his children, but rather him just wanting to help his spouse. However, there was no evidence they investigated the possibility of getting outside help, said the board. "e fact remains that the employer can- not have a legal responsibility for the func- tioning of the family," the board said. "e employer's work rule must hinder the em- ployee from fulfilling his or her legal obliga- tions toward his or her children." MORAL DECISION on page 11 » The employee`s wish to go home early was from his desirea to help his spouse, not a legal responsibility.

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