'There is a lively debate across the country about the appropriate legal test for family status caregiving discrimination'
A British Columbia worker who was fired after returning from a trip to help her elderly parents find a home was not discriminated against because of her family status, the BC Human Rights Tribunal has found.
It’s a fairly simple case because the worker couldn’t connect her complaint to a ground of discrimination, but it highlights the issue of what family obligations should be accommodated and employers’ concern over opening the accommodation floodgates, according to James Kondopulos, a partner with Roper Greyell in Vancouver.
“Where the case is more interesting is to the extent it raises questions about accommodation of family status (caregiving obligations),” says Kondopulos. “There is a lively debate across the country, particularly in B.C., about the appropriate legal test for family status caregiving discrimination.”
The worker was a daytime concierge for Royal Concierge, a provider of concierge and security services. Royal Concierge hired her in 2017 to work for the King’s Landing (KL) Strata Council, the administrator of a building complex in Vancouver and one of Royal Concierge’s most important customers.
In January 2019, the worker planned a trip to Croatia where her parents lived. They were both more than 80 years old and needed day-to-day living support, so she wanted to help them secure housing. She requested four weeks of leave from May 20 to June 14, consisting of two weeks’ vacation leave and two weeks of unpaid leave.
The worker sent a request to Royal Concierge’s president explaining that she had a moral responsibility to help her aging parents who were in poor health. The president approved the request on Jan. 23, although KL didn’t agree with such a lengthy leave.
Read more: Specific parental childcare obligations fall within an employee’s family status requiring accommodation, according to the Federal Court.
Four months later, shortly before the worker left for Croatia, KL directed Royal Concierge to remove the worker from its building because she wasn’t a good fit and she didn’t have good communication with its council president or her colleagues.
Royal Concierge agreed, as KL was an important customer. The president didn’t tell the worker before she left, as he didn’t want to create additional stress for her. On June 8, while the worker was still in Croatia, the president emailed her to say that KL had requested her to be replaced and she should contact the company for “other employment arrangements.”
The worker asked for clarification on what “other employment arrangements” meant, to which the president replied that she wasn’t fired and the company would offer her a concierge position in another building. He explained that her performance at KL and work relations with her peers was why KL decided to remove her.
Worker impatient
The worker replied that she had not been informed of any problems and that Royal Concierge was obligated to get a formal letter from KL about her issues. She added that Royal Concierge was not complying with labour standards and, since no new position had been offered to her, she requested her “final cheque and documentation of my layoff.”
The worker’s response upset the president, as he felt she was being impatient – he didn’t have a specific location for her to start immediately but he had intended to pay her wages until he found one. Instead, he sent her a termination letter on June 18 stating that her employment was terminated with two weeks’ pay in lieu of notice.
The worker filed a human rights complaint alleging that Royal Concierge discriminated against her based on her family status by terminating her employment because she took time away from work to care for her elderly parents.
Kondopulos says the reason for termination was clear in the evidence and it wasn’t related to the worker’s trip to help her parents.
“[Royal Concierge’s president] found [the worker] to be abrasive and rash in the way she communicated and that's what drove him to end the relationship, not some connection to the code,” he says. “He explained he could not meet her request and he found her to be impatient.”
“The tribunal couldn't draw an inference that the leave request was a factor in the decision to terminate and it accepted [the president’s] explanation that he only decided to terminate based on her communications.”
Read more: A BC employer’s refusal to grant additional leave on top of an employee’s parental leave was not discrimination, the BC Human Rights Tribunal found.
The evidence indicated that Royal Concierge’s initial intentions were to keep her employed without loss of income, which were clear when the president said she wasn’t fired and he would make other employment arrangements – although they were poorly communicated to the worker with an initial email while she was away on a stressful trip, said the tribunal.
However, the tribunal found that it was the worker who asked Royal Concierge to terminate her rather than requesting clarification and waiting to see where when another position was found.
The tribunal also found that there was no discrimination and the worker wrongly assumed that her leave was a protected leave. She didn’t request any family caregiver leave under the BC Employment Standards Act – just two weeks’ vacation and two weeks’ unpaid leave – and she didn’t meet the statutory requirement of providing a medical certificate to confirm a family member she was caring for was “at significant risk of death within 26 weeks,” the tribunal said.
Test for family status discrimination not met
The test for family status discrimination in B.C. – established in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 and affirmed in more recent cases – has two branches, says Kondopulos.
“There's a need for serious interference with a substantial family or other caregiving obligation and there has to be a unilaterally implemented change by the employer,” he says, adding that this case failed that test in two ways.
“First of all, the employer did not make a change in its rules or requirements, [the worker] wanted to go to Croatia to care for her elderly parents. On the second part of the test, serious interference with a substantial caregiving obligation, it's not clear that family status was even engaged.”
The worker said that she had a moral responsibility to care for her parents, but that doesn’t rise to the level of a substantial caregiving obligation such as in Campbell River, which featured a single mom and a child with special needs and no reasonable childcare options.
“I appreciate that [the worker’s] parents are over 80 years old and in poor physical health, but this is very much the ‘floodgates’ problem – where do you draw the line?” says Kondopulos. “Many people are similarly situated with elderly and ailing parents, so that can't on its own trigger human rights accommodation, even if the person feels a moral responsibility.”
The tribunal noted that Royal Concierge approved the worker’s leave and it didn’t terminate her until she returned and essentially asked to be terminated, so the leave itself wasn’t a factor in her termination.
The tribunal dismissed the complaint, noting that there was “serious miscommunication on an important issue that did not need to end as it did,” but there was no family status discrimination.
Anytime there may be a connection to a protected ground under human rights legislation, there may be an obligation for the employer to accommodate, says Kondopulos. In cases of family status, B.C. has a specific test under Campbell River and there are other tests elsewhere in the country that try to strike an appropriate balance between the employee’s interest of taking care of their family and the employer’s interest in running their business and operations efficiently.
“Those tests in B.C. [and the rest of] Canada are intended to keep the floodgates closed, because everybody has one form or another of caregiving obligations – be it to a child, a parent, another relative, or a friend,” he says. “You can't set that bar too low, because the burden on business and on employers would be far too great, and I think that's where the boundary has to be drawn.”
See Vranjes v. Royal Concierge Inc. and another, 2022 BCHRT 1.
