Canadian HR Reporter

CANADIAN HR REPORTER July 10, 2017 EMPLOYMENT LAW 5 LeNoury Law Proactive Advice to Management Employment Lawyer of The Year James LeNoury B.A. (Hons) M.A. LL.B 416-926-1107 • Toll Free 1-877-926-1107 • lenourylaw.com Government employee faces limits of family status accommodation Worker's desire to help spouse with children didn't invoke legal obligation: Board A federal government employee's request to get home 30 minutes earlier to help his spouse care for special-needs children did not invoke a legal obligation to accommo- date 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 Depart- ment of National Defence (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 relationship with his manager, who made it clear she was open to requests for flexibility 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." e request related to his family — his spouse had health problems and two of his four chil- dren had development difficulties. Guilbault asked for accommoda- tion 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 work- day so he could leave 30 minutes earlier. 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 said the 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 children after school and day- care. 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 to take care of them all from 4 p.m. un- til he arrived home at 7:15 p.m., which was a lot for someone with health issues. The manager was surprised by the formality of Guilbault's request since she had previously granted the possibility of modi- fying his schedule. It made her uncomfortable, so 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 vari- able schedule, part-time employ- ment, starting earlier, driving to work instead of taking the com- muter train, or changing daycares. However, Guilbault refused all of these options for various reasons, such as financial concerns or hav- ing 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 occu- pational health and safety reasons. Parties unable to reach solution e two parties couldn't reach a solution so Guilbault filed a griev- ance on March 20, 2013, claiming DND's refusal to find a "reason- able arrangement to accommo- date my needs" and modify his work hours was discrimination based on family status, contrary to the Canadian Human Rights Act and the collective agreement. DND rejected Guilbault's griev- ance, finding there was no duty to accommodate in these circum- stances. However, the manager still wanted to help Guilbault so she suggested 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 men- tion a specific duration. 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, 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 direc- tor general of workplace manage- ment refused to find any discrimi- nation but granted Guilbault per- mission 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 also didn't trust his man- ager any longer, so he refused to meet with her on how to imple- ment 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 the complaint was unfounded, but a supervi- sor acknowledged Guilbault was unhappy and proposed combin- ing Guilbault's two paid breaks to create a half-hour lunch and al- lowing him to take his half-hour unpaid lunch at the end of the day. Guilbault accepted the offer, but maintained his discrimination complaint. e Canadian Public Service Labour Relations and Employ- ment Board noted that Guilbault's accommodation 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 Hu- man Rights Act) under the head- ing 'family status' — the health problems of his spouse and two of his children." ough his manager initially recommended he review his "family planning" — to which Guilbault took offence — they eventually came upon a possible solution. However, this solution wasn't initially adopted and led to months of acrimony. e reason for Guilbault's re- quest wasn't necessarily childcare, but rather his spouse's health, found the board. e employee's inability to ar- rive home earlier didn't involve his legal responsibility towards his children, but rather a desire 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 em- ployer cannot have a legal respon- sibility for the functioning of the family," said the board. "e em- ployer's work rule must hinder the employee from fulfilling his or her legal obligations toward his or her 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. And when DND finally did provide accommodation by al- lowing Guilbault to use his lunch break to leave 30 minutes early, it wasn't a legal obligation but rather a moral one to help an em- ployee seek a work-life balance in good faith. e 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" — includ- ing Guilbault's "complete refusal to enter into discussions," said the board. It acknowledged the case was "borderline," but DND didn't discriminate because Guilbault's children weren't in danger and his legal obligations were met. e 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.). Jeffrey Smith is the editor of Canadian Employment Law Today. For more information, visit www.employment lawtoday.com. Jeffrey Smith Legal View e length of time it took to implement the solution was not the employer's fault, but because people couldn't agree. Perfectbound • June 2017 $46* • L7798-7855 ISBN • 978-0-7798-7855-0 Multiple copy discounts available *Plus applicable taxes and shipping & handling University law faculties... and much more. (Prices subject to change without notice) Order your copy today. Visit www.carswell.com or call 1-800-387-5164 for a 30-day, no risk evaluation Connect to Atlantic Canada's LEGAL NETWORK The 2017-18 Atlantic Legal Telephone Directory connects you to your legal community providing accurate and essential legal contact information in all four Canadian Atlantic Provinces. Find over 4,300 listings of lawyers, firms and judges. 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