Human Rights Office

Human Rights Office
Human Rights Office

Rawleigh v. Canada Safeway Limited, 2009 AHRC 6 (CanLII)

Summary:

Mr. Rawleigh was employed at Canada Safeway Limited for over 27 years in a variety of different capacities. In June of 2002, Mr. Rawleigh was employed as a full-time general clerk at Safeway store 2211 in Calgary, Alberta. Mr. Rawleigh was working at this location in the same capacity when his human right complaint was submitted. The complainant’s wife, Ms. Rawleigh, has a degenerative eye condition called retinitis pigmentosa. This condition causes night blindness, reduced visual field and can eventually lead to legal blindness. Due to his wife’s medical condition Mr. Rawleigh sought accommodation in the workplace, asking that he not be rotated onto night shifts like other general clerks. The complainant maintained that due to his wife’s medical condition he needed to be home at night to take care of his three young children and wife. During the time period of 2002-2004 the complainant did not have to rotate on to nights shifts. There is disagreement as to how this occurred. The complaint maintains there was a shift exemption in place while the Safeway representative testified that he could not remember whether this was the case or not. During the course of his employment Mr. Rawleigh’s wife suffered a further medical emergency when she was diagnosed with Chiari 1 malformation. Related to this medical emergency, Mr. Rawleigh requested a Leave of Absence (LOA). In requesting this leave Mr. Rawleigh was met with resistance (i.e. had to take his remaining vacation as part of the leave, discouraged from taking the leave due to time of year and business). After returning from his leave of absence Mr. Rawleigh was contacted by Safeway about his ability to rotate on to night shifts, given that there was no documented exemption according to Safeway. Mr. Rawleigh provided Safeway with new medical documentation regarding his wife’s current medical condition. In response to this new documentation, Safeway offered the complainant a transfer from the position of a full-time general clerk to that of a full-time cashier as a means to accommodate his family issues, since cashiers do not have to work night shifts. The movement  from a clerk to that of a cashier would result in a job re-classification and a cut in hourly pay from $17.59 to $16.77. Despite other suggestions of accommodation put forward by Mr. Rawleigh this was the only accommodation put forward by Safeway. In February of 2005, Mr. Rawleigh requested that he be transferred from full-time status to part-time status. This change was requested in an effort to avoid night time shifts. Mr. Rawleigh’s request for part-time status was granted. In this case it was found that Mr. Rawleigh was discriminated against based on family status. In addition, it was concluded that Safeway Canada did not provide reasonable accommodations to Mr. Rawleigh to the point of undue hardships.

Question(s) to be Determined:

1.    Did the respondent discriminate against the complainant on the grounds of family status?



2.    Assuming prima facie discrimination, did the respondent fulfill their duty to accommodate Mr. Rawleigh, including exploring all the reasonable accommodation options, to the point of undue hardship?

Findings:

1.    Did the respondent discriminate against the complainant on the grounds of family status?



YES



2.    Assuming prima facie discrimination, did the respondent fulfill their duty to accommodate Mr. Rawleigh, including exploring all the reasonable accommodation options, to the point of undue hardship?



NO

Reasoning:

1.    In this case it was found that Canada Safeway Limited discriminated against Mr. Rawleigh on the ground of family status. It was stated that “The Panel acknowledges that the employer, Safeway, for genuine business reasons, adopted the standards of a rotation through the night crew for general clerks. This stance was echoed in the terms of the Collective Agreement. This standard is neutral in its face and was applied equally to all the employees who were in the same job classification as the complainant. However, the complainant had a unique family status situation, which made the implementation of this standard discriminatory to the complainant’s unique needs” (para 237).



2.    It was found that Canada Safeway Limited did not fulfill their duty to accommodate Mr. Rawleigh, including exploring all the reasonable accommodation options, to the point of undue hardship. Citing Safeway’s reluctance to consider alternative forms of accommodation it was stated that “the respondent made it abundantly clear that the cashier position was the only position that operationally met its needs. The Courts have said that no one can expect a perfect solution, yet at the same time they acknowledged that the decision should not be one-sided, which the Panel believes was the case here” (para 334).



It was further stated that “Safeway didn’t even test the degree of hardship that they might have experienced had they attempted to accommodate the complainant outside of the offer of the cashier position. They chose to rely upon impressionistic evidence which closed the door to the exploration of any other accommodations. They chose the safe, convenient and operationally beneficial option: a reclassification and cut in pay without even entertaining any other potentially viable options. The Union and the complainant were prepared to work with Safeway to find a position that would accommodate everyone. Safeway had an opportunity through which to demonstrate progressive employee relations by working with their employee and Union in finding a creative solution. Instead, Safeway retreated into a regressive and hard-line approach, citing operational considerations for their lone offer of accommodation” (para 337).



Remedies:

In the decision no remedies were rendered. Brenda Chomey, the panel chair requested “written submissions regarding compensation for lost wages, pension and benefits as well as the rationale for the length of time this compensation is being sought, March 1, 2005 until the end of 2007. 30 days will be provided from the date of the decision to submit the responses” (para 343).