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
Employer’s Denial of Request for Summer Off, a Breach of Human Rights
Family status cases continue to work through human rights tribunals across the country. A recent decision from the Northwest Territories’ Human Rights Adjudication Panel in A.B. and The City of Yellowknife and Northwest Territories Human Rights Commission, 2016 CanLII 19718 (NT HRAP), provides a discussion of accommodation in the workplace regarding an employee’s request for time off to care for a child diagnosed with autism spectrum disorder. While the outcome in this decision (and in all cases) is fact specific, the decision assists employers in determining what is required of them, when an employee requests time off to care for a disabled child.
Ms. A.B. (the “Employee”), worked with the City of Yellowknife (the “City”) on a part-time basis as a cashier-receptionist between 2006 and 2010 after which, she became a full-time bookings clerk. During her interview for this full-time position, the Employee raised concerns about childcare. The City acknowledged that the childcare concerns would be accommodated; there was no specific or formal agreement in place. The City recognized that the Employee had a child with significant needs related to autism which was not easily supported in Yellowknife.
The Employee requested and received the 2011 summer off from work (through a combination of annual leave and leave without pay), to care for her child while he was not in school. The Employee also requested and received time off during the December 2011 school break.
The essential facts were as follows:
- The Employee met with the City to discuss her request for summer 2012 off and the City proposed that she work evenings and weekends;
- When the Employee indicated that working evenings and weekends would leave her too stressed and tired, the Human Resources Officer for the City advised that she would have to get a doctor’s note to explain why she could not work;
- The Employee subsequently provided letters from two physicians who provided details about her child’s disability and the need for routine and proximity to “people he is comfortable with and who are capable of managing his needs”;
- The City ultimately deemed the letters to be insufficient because they did not come from the Employee’s own physician or establish her own medical need;
- The Northwest Territories Disabilities Council could not support the child in its summer camps because of the child’s complex needs and behavioural risks and a letter outlining same was provided to the city; and
- The Employee resigned in July 2012, after using the last of her annual leave.
There is conflicting evidence about comments made by the Employee during one of the meetings between the parties to discuss work schedules. While it was the Employee’s position that she described to the City how working evenings and weekends would affect her quality of life, noting that she had been unable to have dates with her husband and wanted take a family vacation, the City perceived this comment as a clear admission that the Employee believed she was entitled to summer vacation and “date nights”.
Significant evidence was presented at the hearing to demonstrate the Employee’s childcare situation in 2012. The Employee attended numerous appointments with doctors, speech therapists, occupational therapists and special needs assistants at her son’s school. During the school year, the Employee worked with a team of health and education workers to assist her child. The child was unable to attend regular classes since his condition meant he could be disruptive or violent; he worked independently outside class with two education assistants. The support available during the school year was not available during the summer months in Yellowknife.
In determining whether there was a prima facie case for discrimination on the ground of family status, the Adjudicator applied the four-factor test from Canada (Attorney General) v Johnstone, 2014 FCA 110 (Johnstone):
- the child is under the care and supervision of the employee;
- the childcare obligation engages the employee’s legal responsibility for that child, as opposed to a personal choice;
- the employee has made reasonable efforts to meet those childcare obligations through alternative solutions, and no such alternative solution is reasonably accessible; and
- the workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.
The first factor was easily met. With respect to the second factor, the Adjudicator did not accept the City’s position that the Employee’s comments in a meeting were assertions of a personal preference adding that it was understandable and should not be held against her if she wished to have a vacation or dates with her husband. The Adjudicator found that the types of childcare activities that the Employee would be engaged in during the summer were the legal responsibility for the Employee. The Adjudicator was critical of the City, stating that it:
“…failed to take any interest in the child’s diagnosis, which they needed to do in order to make appropriate inquiries. They chose instead to presume they understood the childcare issue, and to uncharitably misinterpret the complainant’s comments.”
Regarding the third factor, the Adjudicator found that while the City proposed work schedules for the Employee, the schedules were not reasonably accessible. Again, the Adjudicator found that the City failed to appreciate the genuine reasons for the Employee’s rejection of the proposed schedules, making assumptions rather than appreciating the actual circumstances.
The fourth factor from Johnstone was met since the Employee provided considerable evidence demonstrating that working part-time would interfere with her childcare responsibilities and that the City failed to consider the effect of its proposed schedules on the Employee’s childcare responsibilities.
In finding that there was a prima facie case of discrimination, the Adjudicator held that it was not a bona fide occupational requirement for an employee to work evenings and weekends during the summer of 2012. The Adjudicator also found that the City did not accommodate the Employee to the point of undue hardship, given the size and capacity of the City as an organization, since the Employee was only requesting leave without pay from mid-July to the end of August and the summer was a slow period for bookings. The Adjudicator found that there were several casual cashiers who could have been trained to fulfil the role of the bookings clerk, adding that the City hires summer students and could have easily assigned other employees to enter bookings. The Adjudicator concluded that the search for accommodation in this case failed because the City “neglected to take a remedial approach and became entrenched in its refusal to accommodate”. The parties were given 30 days to make submissions on the appropriate remedy.
Lessons for Employer
This decision serves as a reminder for employers that the duty to accommodate, to the point of undue hardship, involves a consideration of the entire circumstances of a particular case. In this case, it should have been clear to the employer (based on the letters from two physicians and the Northwest Territories Disabilities Council) that the level of support that was required and available for the employee’s child during the school year was relatively non-existent during the summer months. Rather than work with the employee to reach a solution and allow her to take the summer to care for her son, the employer took a rigid stance against the employee because they believed she felt she was entitled to summers off. While it may not be the outcome in all cases, in this case, the employer had the resources to organize its workforce so that other employees could have taken on the employee’s position while she was on leave.
Please click below for a link to the full decision:
A.B. v Yellowknife (City), 2016 CanLII 19718 (NT HRAP)