2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
Alberta Human Rights Tribunal Finds Employer Discriminated based on Family Status
The complainant, Leah Clark, filed a human rights complaint against her employer Bow Valley College alleging discrimination on the ground of family status contrary to the Alberta Human Rights Act. Ms. Clark, who was a nursing instructor, requested and was approved for maternity leave from February 1, 2010 through January 31, 2011. Ms. Clark went on approved sick leave in November 2009. Her child was born on January 2, 2010, almost seven weeks premature. After the child was born, the parties did not communicate about the start or end date of Ms. Clark’s leave.
Ms. Clark lived approximately 100 km from Calgary. Ms. Clark became aware, in mid-November 2010, that she was placed on the instructor schedule beginning January 3, 2011. Ms. Clark contacted Bow Valley and advised she had childcare beginning February 1, 2011 and, despite trying, was unable to secure childcare for January 2011. Bow Valley denied Ms. Clark leave past January 10, 2011 and advised her to avail herself of childcare services. Ms. Clark did not report for work, and by January 13, 2011, Bow Valley deemed her to have abandoned her position.
Ms. Clark alleged Bow Valley was aware that she had no options for childcare and the denial of leave was discrimination on the basis of family status. Bow Valley argued that pursuant to the collective agreement, Ms. Clark was only entitled to 52 weeks of leave. Further that because Ms. Clark requested vacation less than two weeks prior to the commencement of classes and a shortage of nursing faculty, they College was unable to locate coverage; therefore, the denial was based on operational requirements and not family status. Bow Valley argued it provided two child care options and attempted to accommodate Ms. Clark. Bow Valley also argued Ms. Clark did not provide evidence showing reasonable efforts to reconcile family and work obligations prior to seeking accommodation.
After considering the evidence, the Alberta Human Rights Tribunal turned its mind to the appropriate test to be used for prima facie discrimination in family status dealing with childcare obligations and concluded that the approach in the Federal Court of Appeal’s decision in Johnstone v. Canada Border Services Agency (“Johnstone”) was the correct one. The test is as follows:
…in order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim must show (i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
After applying the evidence to this test, the Tribunal determined that Ms. Clark was discriminated against on the basis of family status because she was not seeking a permanent change in hours, merely accommodation for three weeks. With respect to operational requirements, Bow Valley had a practice of shared instruction, which could have been used in this case. There were also concerns about Ms. Clark’s husband’s ability to work and care for the children, but the Tribunal did not decide that his availability affected the outcome of the test, considering all the circumstances.
Bow Valley had a duty to accommodate Ms. Clark and failed to do so to the point of undue hardship. Ms. Clark was awarded $15,000 in general damages for injury to dignity as well as lost wages from January 7, 2011 to May 1, 2011.
Lessons for Employers
The Alberta Human Rights Tribunal adopted the Johnstone test for discrimination on the basis of family status with respect to childcare obligations. This test is focused on the particular personal circumstances of the individual employee and requires employers to work with employees to ensure meaningful, individualized accommodation. While the Federal Court of Appeal decision in Johnstone is relatively recent, it is clear that courts and tribunals accept the test.