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Queen's University
 

Canada Border Services

Fiona Ann Johnstone and Canadian Human Rights Commission and Canada Border Services [2010] CHRT 20.

Background

  • The CBSA was created in 2003. Its predecessors were the CCRA (Canada Customs and Revenue Agency), created in 1994  (up to 2003) and the National Revenue (Customs and Excise).  
  • In1993, the CHRT ruled that National Revenue (Customs and Excise) had discriminated against an employee (Brown) when it refused to accommodate her request to work day shifts so that she could arrange childcare. In this case, Brown v. National Revenue (Customs and Excise), the tribunal ordered the employer to apologize to the employee (which it did) and to amend its policies to include accommodation for family status (which it announced in the letter of apology but never implemented).  The Tribunal ordered that in its policy, Family status was to be interpreted as "a parent's right and duty to strike a balance between work obligations and child rearing coupled with a clear duty on any employer to facilitate and accommodate that balance".  The employer applied for judicial review of the decision, which was ultimately dismissed by Federal Court in 1998.  
  • In 2000, the Labour Relations Division of the CCRA hosted an employment equity strategic session in which they exhibited a draft policy which included the recognition of the burden placed on women by their having to care  for children, elders and home maintenance and by a corporate culture which does not recognized this.
  • In 2003, the CBSA completed an Equity Compliance Review in which it recognized their duty to "accommodate women in balancing their work and personal life through supportive policies and management."
  • Neither the policy ordered by the Tribunal in 1993, nor the draft policy proposed in 2000, nor the measures put forth in the Equity Compliance review have been implemented.
  • A Commission Investigator recommended in 2004 that the Commission consider another employee's complaint of discrimination on the basis of family status.  Notwithstanding this recommendation, the Commision declined to take the case in 2007. The complainant, Ms. Johnstone,  appealed the commission's decision to Federal Court, which remitted the case back to the commission for reconsideration. Thereafter, the commission referred the complaint to the Tribunal.The following facts pertain to her complaint and to her case, heard in 2010.

Facts

Ms. Johnstone and her husband Jason Noble both work full-time for Canada Border Services; she is a Canada Border Services Officer (BSO) whereas he is a supervisor.  Like all full-time employees of Canada Border Services, they work on a schedule of 5 days on, three days off on rotating shifts which are irregular and unpredictable.

When they had kids, the schedule made it impossible for Ms. Johnstone and Mr. Noble to find third-party childcare services, which typically operate five days a week on a static schedule.   They were able to find three separate family members willing to help on three set days.  Therefore,  Ms. Johnstone requested  that she be permitted to work three set days a week,13 hours a day (with start time to be determined by employer). This arrangement would allow her to keep her full-time status and related benefits.    

On both occasions, the employer refused to accommodate Ms. Johnstone, citing the employer's unwritten policy that full-time employees seeking accommodation because of childcare responsibilities would have to swtich to part-time status.  Also mentioned were health and safety concerns (such a long shift would cause the employee to be fatigued and incapable to performing at an optimum level).   No efforts were made to assess Ms. Johnstone's case on its individual merits. 

This unwritten policy, however,  was not applied universally; some employees with young children were accommodated without having to drop to half-time status. Moreover, employees who requested accommodation for religious or medical reasons were afforded accommodation without having to drop to half-time status. Finally, there were employees in the same position as Ms. Johnstone and in other areas, who had 13-hour shifts and to whom health and safety concerns did not seem to apply.

The Tribunal found that the senior managers who testified had not been sufficiently educated or trained in human rights matters and that their knowledge was therefore insufficient.

Arugments

The employer argued that family status meant "being related to someone", not "having childcare responsibilities".  It maintained that having children was a choice whereas being related to someone was not. Employees who chose to have children were not covered by the act, in its opinion. Even if family status was a human right, then it would be undue hardship to accomodate Ms. Johnstone because this would open the floodgates for massive numbers of employees requesting similar accommodation, which would put the employer's schedule into a state of chaos. Finally, it is unsafe for anyone to work 13-hour shifts; an officer's fatigue would negatively affect her ability to perform her job duties.  

Issues

  • Was there a prima facie case of discrimination on the basis of family status?
  • Did the Employer justify its discrimination against the employee as being a bona fide occuapational requirement?

Decisions

  • Yes
  • No

Reasoning

  • The Tribunal used the definition of family status given in Brown (2003) according to which childcare responsibilities are a human right and employees exercising that right should not have to face discrimination at work.  It ruled that in this case, the Employer had imposed half time status upon a full-time employee, with resulting loss of pension and benefits and missed opportunities (training, promotions, special team participation, lower pay for overtime) for reasons of family status.
  • The employer failed to assess Ms Johnstone's case individually on its merits. Rather, it applied an unwritten and arbitrarily applied policy dealing with employees with childcare responsibilities that conflicted with the work schedule.  It accommodated some, but not all,  women with childcare responsibilities. Furthermore, it had a policy for accommodating employees with medical disabilities or religious obligations which prevented them from attending work.  Moreover, the Health and Safety concerns raised as a undue hardship argument were not persuasive, as many part-time employees in similar positions as Ms. Johnstone worked 13-hour shifts. 

Order

The Tribunal made three orders

Systemic remedy: Wages and benefits

Ms. Johnstone is to be compensated for her lost wages and benefits, including overtime pay at the full-time rate, and that she be able to contribute to her pension from January 2004 to present (not including the time she took off to do this case)

General Damages for pain and suffering

She is to be paid $15,000 for injury to her person, her confidence, her professional reputation for the arbitrary and insensitive way in which her case was handled by the employer 

Special Compensation

She is to be paid $20,000 in special compensation for willful and reckless conduct. This remedy addresses the fact that the employer, by "ignoring so many efforts both externally and internally to bring about change with respect to its family status policies of accommodation, has deliberately denied protection to those in need of it"

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000