Employees said change to shift schedule discriminated against family status
Four employees at an Ontario electricity distribution company cried foul when their shift schedule was altered by their employer and caused problems with their parental responsibilities.
However, when they filed grievances claiming discrimination based on family status, an arbitration board drew a line between serious family obligations that should be accommodated and normal family responsibilities employees should deal with themselves.
The four employees worked as linemen for Power Stream in Vaughan, Ont. As part of the collective agreement, employees could work five eight-hour shifts, from 7:30 a.m. to 4 p.m., or four 10-hour shifts, from 6:30 a.m. to 5 p.m., per week. All four worked the five-shift schedule because it allowed them to fulfill their responsibilities to their children.
However, when a new collective agreement was negotiated in 2008, Power Stream decided to eliminate the five-shift schedule and require all employees to work four 10-hour shifts. Though the union initially resisted, it eventually accepted the standard.
The four employees were concerned the new shift would negatively impact child-care responsibilities. They requested Power Stream let them continue working the five-shift schedule but Power Stream said it couldn’t accommodate them. The employees filed grievances claiming the shift change negatively affected them based on their family status and amounted to discrimination.
The circumstances for each employee concerned their children. Tom Baddely, a 21-year employee, had joint custody of two children, six and 10 years old. When the schedule changed to longer shifts, Baddely was unable to pick the children up from daycare after work and couldn’t find a daycare that would keep them for the hours the longer shift required. An alternate custody arrangement was tried but didn’t work out.
Kirk Thompson, a 24-year employee, had to pick up his two children from school after work because his wife worked late. The younger son went to daycare after school but there were extra fines if he stayed after 6 p.m. The younger child couldn’t take a bus because he had special needs and went to a school outside the school district. When Thompson started working the longer shifts, his family was negatively impacted because there was less time to do homework and extracurricular activities, he said. However, after he filed the grievance, his wife stopped working and took over the pickup and drop-off responsibilities.
Bruce Bender was a 20-year employee with eight- and four-year-old sons and a wife who worked long hours. He used to work the four-shift schedule but switched because it allowed him to pick the children up from daycare after work. This daycare also charged more to keep children after 6 p.m. so his wife was forced to pick them up, which limited her opportunity for advancement at work and placed most of the burden of domestic duties on her.
Glen Apps, an employee of 21 years, had three teenaged kids, two of whom lived with him and one with his ex-wife. Apps also initially worked the four-shift schedule but found it interfered with his kids’ extracurricular activities so he went on the five-shift schedule. When he went back to four longer shifts, he missed their activities and had less time for himself at the end of the day.
Parents must make difficult choices: Board
The board cautioned against the notion sometimes used in previous cases that “an employer action which has any negative impact on a family or parental obligation is prima facie discriminatory.”
Parents must provide necessities to their children and live up to parental obligations, it agreed, but they must also work to ensure they have the financial resources to provide that care. Sometimes parents must make difficult choices to find the best compromise between family and work demands, said the board.
The shift change would have a discriminatory, adverse impact on the employees if it prevented them from providing the basic necessities for the health and safety of their children, said the board. However, the concerns raised by the employees did not fall into this category.
Bender and Apps were able to rearrange pickup and drop-off duties with their spouses and, though inconvenient, this did not hinder their basic parenting duties. Thompson’s duties were no longer an issue with his wife able to look after the children and his children’s after-school sports did not warrant accommodation.
“An employer cannot be expected to establish terms of work that do not create conflict with each (and) every characteristic of family status,” said the board.
However, Power Stream discriminated against Baddely because of his custody arrangement, found the board. Baddely had carefully arranged his life around the five-shift schedule. Requiring him to alter his schedule, without investigating accommodation options, negatively affected him, his children and his ex-wife.
The board dismissed the grievances of Thompson, Bender and Apps but ordered Power Stream to discuss accommodation options with Baddely.
For more information see:
•I.B.E.W., Local 636 v. Power Stream Inc., 2009 CarswellOnt 7325 (Ont. Arb. Bd.).
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 [email protected]. For more information, visit employmentlawtoday.com.
