Human Rights Office

Human Rights Office
Human Rights Office

Communications, Energy and Paperworkers Union (CEP), Local 707 v. SMS Equipment Inc., 2015 ABQB 162 (CanLII)

Summary

The Grievor moved to Fort McMurray and started working as a labourer with the Employer on November 30, 2010, working 14 days on and 14 days off, with rotating day and night shifts each 14-days. In February 2012, the Grievor gave birth to a second son. While she was on maternity leave, she applied for a first-year welder apprentice position with shifts of seven days on and seven days off with rotating tours of days and nights. After getting accepted, the Grievor returned to work with the Employer on October 11, 2012, several months prior to the expiry of her maternity leave.

On November 8, 2012, after her first night shift, the Grievor requested to be permitted to work straight day shifts, rather than rotating day and night shifts, because the work schedule of her older son’s father had changed and he was no longer providing any significant childcare; and the father of her younger son had no involvement with his child. The Employer refused her request on November 20, 2012.

Afterwards, in December 2012, the Union filed a grievance on the Grievor’s behalf, claiming the Employer violated the prohibition against discrimination on the basis of family status when it refused to accommodate the Grievor’s childcare requirements.

In March 2013, the Grievor spoke to an employer human resources representative. The Grievor explained that she had obtained childcare but it was too expensive to pay for childcare both during the nights while she worked and during the days while she slept, as a consequence, she looked after the children herself during those days resulting in sleep deprivation before going to work. Rather than searching for suitable accommodations, the Employer discussed the contributions, or lack thereof, by her sons’ fathers in relation to expenses and childcare.

On May 9, 2013, the Union requested a shift modification for the Grievor and another welding apprentice, who was prepared to work a schedule of exclusive nights while the Grievor would work a schedule of exclusive days. The Employer denied the request. Then, the Union’s grievance proceeded to Arbitration which resulted in a positive case of prima facie discrimination on the ground of family status, and the company was directed to accommodate the Grievor by allowing her to work a straight day shift.

SMS Equipment Inc. later appealed the decision, but this was also dismissed by Alberta’s court.

 

Question to be Determined

  1. Does “family status” include the duties and responsibilities of childcare?
  2. Did the Union establish a prima facie case of discrimination?
  3. Has the Employer established that its rule or policy is a “bona fide occupational requirement”?

Findings

1. Does “family status” include the duties and responsibilities of childcare?

YES

2. Does the Union has established a prima facie case of discrimination?

YES

3. Has the employer established that its rule or policy is a “bona fide occupational requirement”?

NO

 

Reasoning

            In this case, the Court used Johnstone v. Canada Border Services [2010] C.H.R. D. No. 20 (“Johnstone 2010”), also a case related to working nights shifts, and other pieces of jurisdiction to determine whether family status includes childcare responsibilities:

It is difficult to have regard to family without giving thought to children in the family and the relationship between parents and children. The singular most important aspect of that relationship is the parents’ care for children. It seems to me that if Parliament intended to exclude parental childcare obligations, it would have chosen language that clearly said so.

In result, I conclude the Tribunal’s conclusion that family status includes childcare obligations is reasonable. It is within the scope of ordinary meaning of the words; it is in accord with decisions in related human rights and labour forums; it is in keeping with the jurisprudence; and it is consistent with the objects of the Act. (para. 112 & 113)

At the same time, the Court took into consideration the special circumstances of being a woman in a non-traditional sector.

The Grievor is a single parent of two children under the age of six. The fathers of her children provide virtually no childcare and she has no other family residing in Fort McMurray. The Employer requires that employees work rotating night and day shifts. The adverse effect upon the Grievor is that on the weeks she is required to work nights, she must either look after her children herself and sleep only a few hours each day or spend hundreds of dollars per month for additional childcare while she sleeps. The Grievor asked to work exclusively day shifts. She found another employee in the same classification who is prepared to work exclusively night shifts. Some other employees have been permitted to work exclusively night shifts. For reasons that have not been provided, the Employer rejected her request for accommodation. (para. 56)

For these reasons, the Court determined that the adverse effects suffered by the Grievor (going sleepless or spending additional sums of money for childcare while she sleeps) were a direct consequence of the Employer’s policy on working rotating shifts. In consequence, the Union did established a prima facie case of discrimination on the ground of family status, because the Employer’s rule requiring welders to work night shifts has the effect of imposing a burden on the Grievor due to her childcare responsibilities that is not imposed upon welders who do not share her status.

The Employer argues that this case is about personal choices of the Grievor. Specifically, choices about where and with whom she lives; who she is prepared to have care for her children; which vehicle she drives; whether to pursue legal remedies against her children’s father for financial support; and which job she chose to pursue. It argues that decisions like Jungwirth and Power Stream require employees to prove they have taken all reasonable steps to “self-accommodate” before a prima facie case of discrimination may be established and the Grievor has not taken all appropriate steps to do so in this case. (para. 64)

Finally, the Employer did not present any evidence that accommodating the Grievor by permitting her to work exclusively nights would cause it undue hardship. Accordingly, the Employer has not established that its rule or policy is a bona fide occupational requirement and hence the Employer’s rule requiring the Grievor to work rotating night and days shifts is discriminatory.

 

Remedy

The Court directed the Employer to forthwith accommodate the Grievor by permitting her to work a straight day shift, and also directed the Employer, Union and the Grievor to meet to discuss any other reasonable forms of accommodation to address the current circumstances of the Grievor and the Employer.