Court rulings confirm that when parents work for the same employer, they can’t be forced to limit career mobility to meet child care obligations.
Colin McConnell / Toronto Star
Brooke Richardson and her 6-month-old baby Kai Richardson-Lamb were protesting outside of Queen’s Park recently about the lack of licensed affordable child care. Two recent Federal Court of Appeal rulings confirmed that in cases where parents work for the same employer, they can’t be forced to limit their career mobility or drop from full-time to part-time work to meet these obligations.
Two recent court decisions have made it clear that employers must be flexible when parents are faced with difficult child care arrangements.
The Federal Court of Appeal rulings confirm that cases where parents work for the same employer, they can’t be forced to limit their career mobility or drop from full-time to part-time work to meet these obligations. This is especially so when the employers could easily accommodate their needs.
Pearson International Airport border guard Fiona Johnstone and Alberta CN Rail conductor Denise Seeley were restored to full-time from part-time status, paid for lost wages and given the maximum amount of $35,000 in special damages.
Ottawa lawyer Andrew Raven, who handled Johnstone’s case for a decade, says the decisions send a strong message to employers.
“They must take requests for accommodation of child care needs seriously and have a company policy regarding management of these claims,” Raven says.
The court ruled on Johnstone’s case this month. She and her husband worked at Pearson as Canada Border Services officers and in 2007 he was transferred to Ottawa. As a result of the transfer, Johnstone took a leave of absence to take care of their children.
Customs officers work in rotating shifts, with each cycle lasting 56 days. Employees are given 15 days notice of each new schedule.
When Johnstone’s first child was born in 2003, she asked to work a fixed three-day week of 13 hours each day. Her request was refused. She asked again in 2004, when her second child was born. That was also turned down.
The Canadian Border Security Agency had an informal policy for employees wanting to work fixed shifts. They had to drop down to part-time status and work no more than 34 hours per week. This meant a reduced pension and fewer opportunities for promotion.
Johnstone made a family status discrimination application with the Canadian Human Rights Commission in 2004 and after a series of stops and starts, her case was heard in 2010. The tribunal ruled in her favour, the CBSA appealed to the Federal Court and then the Federal Court of Appeal, where it lost this month.
A 2010 decision involving Seeley was a similar story.
Seeley and her husband both worked for CN Rail in Jasper, Alberta. She was a freight train conductor and he was a locomotive engineer.
Seeley was laid off in 1997 and had children in 1999 and 2003. In February, 2005 she was recalled to cover a shortage in Vancouver. She asked not to be posted there, using the compassionate clause in the collective agreement.
She said her husband was often away for 24 hours at a time, she had no family in Vancouver and could not find suitable child care because most daycares keep standard business hours.
She was fired in July 2005 when she did not take up the Vancouver position and thereafter made a human rights discrimination application. As in the Johnstone case, the Canadian Human Rights Tribunal allowed her claim and like the Johnstone case, CN also appealed and lost.
Federal Court of Appeal Justice Robert Mainville, who wrote the decisions in both cases, said that Johnstone and Seeley were responsible for the care of their children and made reasonable efforts to do so when they were at work. Nevertheless he agreed that Johnstone’s variable shifts and Seeley’s transfer made it virtually impossible for them to make suitable child care arrangements.
He also specifically noted that employers only have to accommodate essential child care obligations, as opposed to extracurricular activities like sports or dance lessons, which are a matter of personal choice.
The federal Attorney General has 60 days from May 2, when the decisions were released, to file further appeals. It is currently considering the options.