Alberta worker wins accommodation for childcare, avoids night shift

Employer couldn’t explain why straight day shifts couldn’t be accommodated
By Jeffrey Smith
|Canadian HR Reporter|Last Updated: 05/01/2015

An Alberta company discriminated against a worker who was a single mother of young children when it refused to accommodate her request for day shifts only, the Alberta Court of Queen’s Bench has ruled.


SMS Equipment was a supplier of equipment and equipment service to the construction, mining and petrochemical industries in Fort McMurray, Alta. The worker was a first-year apprentice welder who started employment as a labourer with SMS in November 2010. 


The woman’s job involved working 14 days on, followed by 14 days off, with rotating day and night shifts for each 14-day stretch of work.


The worker had moved to Fort McMurray from Newfoundland  and Labrador and she had a young son who remained behind for a few months before joining her. The son’s father also moved to Fort McMurray but did not live with the worker. He sometimes cared for the child when the worker worked.


In February 2012, the worker gave birth to a second son fathered by a different man. While on maternity leave, she applied for a first-year welder position, which had shifts of “seven days on and seven days off with rotating tours of days and nights.” 


She won the job and returned to SMS in the new position in November 2012, several months before her maternity leave expired.


Balancing shift work, childcare too much for worker

One week later, after a seven-day tour of night shifts, the worker requested her tours be changed to straight day shifts since she was finding it difficult to balance her childcare needs. The father of her first son had changed his work schedule and was no longer able to provide any childcare assistance. 


The father of her younger son had no involvement with his child and she had no family in Fort McMurray, so she had to rely completely on third-party childcare for both her children.


SMS refused the worker’s request, saying it couldn’t accommodate her.


In March 2013, the worker spoke to an HR representative, explaining she had found childcare for her two sons but it was too expensive to pay for both nights when she worked and days when she slept. As a result, she looked after her kids herself during the day when on the night shift and got “very little sleep.”


She also mentioned she received little to no support either financially or for childcare from either of her sons’ fathers.


In May 2013, the union requested a shift modification for the worker and another welding apprentice who was willing to work exclusively night shifts while the worker could work only days. SMS denied the request and the union filed a grievance claiming discrimination based on family status, which was contrary to the collective agreement and the Alberta Human Rights Act.


Arbitration, then appeal looks at family status

An arbitrator concluded family status included childcare responsibilities and SMS’ rule that welders must work night shift “has the effect of imposing a burden on (the worker) due to her childcare responsibilities that is not imposed upon welders who do not share her status.” 


This disadvantage created a prima facie case of discrimination based on family status that SMS was required to prove it could not accommodate without undue  hardship.


The arbitrator found SMS provided no evidence to justify its rule requiring the worker to work rotating night and day shifts and ordered the company to accommodate her by allowing her to work a straight day shift.


SMS appealed the decision to the Alberta Court of Queen’s Bench, arguing it did not have an obligation to accommodate the worker’s parenting demands and the arbitrator improperly incorporated financial elements to childcare obligations.


Firstly, the court found it was reasonable to include childcare obligations — and their costs — in the meaning of family status.


“It seems to me that it is practically impossible to avoid a financial aspect to (childcare) obligations in general,” said the court.


“To the extent that reasonable costs of childcare are implicated in the performance of childcare obligations, this financial component does not detract from the meaning of ‘family status.’”


The court also agreed that it had been established there was a prima facie case of discrimination based on adverse effects — the choice of going sleepless or spending significant amounts of money on childcare — the worker experienced that other welders didn’t, due to her status as a single parent of two small children. 


These adverse effects were a direct result of the company’s practice of rotating day shifts and night shifts on the seven-day work tours. 


This adverse effect wouldn’t change if the worker had help from the fathers of her children, received government subsidies or drove a cheaper car because she would still have to spend more money on childcare while she wasn’t at work but needed to sleep, said the arbitrator, which was agreed upon by the court.


Test for family status discrimination met

The court pointed to the test for establishing a prima facie case of discrimination based on family status established by the 

Federal Court of Appeal in Johnstone v. Canada (Border Services Agency): 


• A child is under the employee’s care and supervision.


• The childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice.


• The employee has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions.


• The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.


The court agreed with the arbitrator that the worker’ circumstances met this test, placing the onus on SMS to prove there was a bona fide occupational requirement or undue hardship preventing accommodation. 


The court also agreed with the arbitrator’s principles that the choice to become a working parent — or single working parent — “do not negate a claim of discrimination” and it was reasonable to expect employers to develop rules and policies that further the purpose of sharing the burden of family responsibilities and do not impede the “full participation in the workforce” of working parents.


The court also found the worker was solely responsible for the care of her children, not through choice but through the circumstance created by the lack of support from their fathers. She had no family in Fort McMurray to whom she could turn and paid childcare was her only option, which she had reasonably investigated, said the court.


The court upheld the arbitration decision, finding there was no evidence the worker couldn’t be accommodated by putting her on straight day shifts.


For more information see:

SMS Equipment v. CEP, Local 707, 2015 CarswellAlta 385 (Alta. Q.B.).

Johnstone v. Canada (Border Services Agency), 2014 CarswellNat 1415 (F.C.A.).


Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

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