On January 10, 2017*, the Public Service Labour Relations and Employment Board (“Board”) rejected the grievance of a claims officer (“Employee”) of the Department of National Defence (“Employer”) who alleged he was the victim of discrimination based on his family status, in violation of the Canadian Human Rights Act (“HRA”) and the collective agreement binding the Employer and the Canadian Association of Professional Employees (“Union”).

Summary of the facts
In January 2013, the Employee requested accommodation from the Employer under the CHRA to allow him to take his two 15-minute breaks at the end of his day and thereby leave work 30 minutes early. To justify his request, he cited his spouse’s health problems and the language and development problems of his two children. The Employee also explained that the morning and evening commute between work and his home in Deux-Montagnes, which involved travel by a combination of car, commuter train, subway and bus, took about two hours. By leaving work a half-hour early in the afternoon, he could help his spouse with family tasks.

The Employer refused to grant his request on the grounds that those 15-minute breaks had been negotiated with the Union to promote employee health and well-being. Moreover, such accommodation represented a civil liability problem for the Employer, who, because the employee would be considered still at work, would be responsible if an accident were to occur during the paid half-hour.

The Employer also met with the Employee to offer him other solutions such as a compressed workweek, a variable schedule, part-time employment, starting and leaving work early, using his personal vehicle to reduce travel time and changing daycares. However, the Employee rejected all of those options.

As a result, the Union filed a grievance on March 20, 2013 alleging the Employer’s refusal to accommodate the Employee was discriminatory and seeking financial compensation as indemnification for undue stress.

In September 2014, despite the grievance being filed, the Employer offered the Employee the option of taking his half-hour lunch at the end of the day so he could leave early and combining the two paid 15-minute breaks to create a half-hour lunch. The employee accepted that offer and withdrew the “accommodation” part of the grievance.

The Board’s decision
Despite the accommodation measure ultimately granted in September 2015, the Employee and his Union sought to get a finding from the Board the Employee had been discriminated against. In order to rule on the matter, the Board applied the test set out by the Federal Court of Appeal in Johnstone. Under that test, to establish prima facie proof of discrimination on the ground of family status resulting from childcare obligations, a person advancing a claim must show that:

1. a child is under his or her care and supervision;
2. the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
3. 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
4. the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

In this case, the Board found the Employee’s situation was not exactly a case of childcare, since the children were in the mother’s care while awaiting the father’s arrival. The issue, instead, was the medical condition of the Employee’s spouse, which made it preferable for her to have help with the children at the end of the day.

The Board determined that the second and third elements of the Johnstone test were not met because the Employee had not considered hiring a babysitter for a few hours at the end of the day or taking steps to have someone care for the child who required additional care for developmental reasons. The Employee’s legal responsibility toward his children was therefore not at stake and not seeking external help was a personal choice.

The Board explained that the Employee’s needs were very real and “far removed from such things as ballet or judo classes,” but, nonetheless, the Employer could not have legal responsibility for the functioning of the family.

Consequently, the Employer’s initial refusal did not hinder the Employee’s responsibility to meet his legal obligations toward his children or his spouse and there was no prima facie discrimination. The Board added that had it concluded that there had been prima facie discrimination, it still would have found that the Employer had fulfilled its duty of reasonable accommodation.

Conclusion
The lesson to take away from this ruling is that if employers impose a workplace rule that interferes in a manner that is more than trivial or insubstantial with the fulfillment of an employee’s legal obligation toward his or her children, they may be legally required to accommodate that employee. However, as the Board decision in Guilbault shows, it is up to employees to balance their workplace responsibilities and their family life, and they must look solutions, in their personal lives, before asking the employer for a change to their working conditions.

Notes:
*Guilbault v Treasury Board (Department of National Defence), 2017 PSLREB 1
**Attorney General of Canada v Fiona-Ann Johnstone and Canadian Human Rights Commission (Johnstone), [2014] FCA 110, para 93.

Patrick Galizia and Geneviève Plante