Restructuring led to increased mail load for letter carrier, but she couldn’t work overtime due to childcare obligations
Employees are expected to make arrangements to balance their work and family obligations. However, if the employer changes the work obligations that makes it difficult for the employee to maintain that balance, it could mean family status discrimination.
Canada Post discriminated against a letter carrier when it told her she had to change her childcare arrangements so she could work regular overtime on her route, an arbitrator has ruled.
Jessica Weber was a letter carrier for Canada Post in Kitchener, Ont. Her union had a collective agreement with Canada Post that included an overtime provision stipulating that “insofar as practicable, overtime on an employee’s route or assignment will be performed by the employee assigned to that particular route.” It was expected that if an employee couldn’t finish her route in the allotted time, she would notify her supervisor and continue until all the mail had been delivered.
However, this practice caused problems for Weber, who had a young daughter she dropped off at daycare at 7 a.m. and had to pick up by 4 p.m. each day. Her husband worked evening shifts and couldn’t pick up their daughter and the daycare didn’t allow for late pickups. There were also no other daycare options available — most had waiting lists — and she couldn’t get any childcare assistance from family or friends.
Normally, Weber was able to complete her route, return to the depot and leave work in time to pick up her daughter. However, in the summer of 2011 Canada Post restructured the Kitchener depot and changed the mail delivery routes.
Canada Post employees went on strike around the same time, but returned to work on June 28 under back-to-work legislation. Initially, Canada Post said the collective agreement wasn’t in force, so the overtime provision didn’t apply and supervisors arranged overtime coverage for incomplete routes with any carriers. By July 19, the collective agreement was reinstated.
On July 11, Weber couldn’t complete her route and returned to the depot with seven bags of mail. She explained this was because of a delay by the relay driver of her first relay of mail and also said her new route was overassessed. No discipline was issued.
Weber met with the depot superintendent, a supervisor, and a union official on July 21 to explain she couldn’t do overtime on her route under the collective agreement clause because of her childcare issues. The superintendent told Weber she would be expected to deliver all of her mail, even if it involved overtime.
A few days later, on July 25, Weber told her supervisor before leaving on her route that she would be in an overtime situation and asked that her undelivered mail be covered by someone else. Over the course of the day, delays in her relay mail made things worse and Weber was allowed to leave mail in relay boxes so she could leave in time to pick up her child. However, Weber was called into an interview to discuss matters.
The superintendent told Weber her route was being assessed. He then told her she had one more week to “make other arrangements for your childcare issues” after which she would be required to perform any overtime needed for her route under the collective agreement clause. Weber filed grievances for the interview and the superintendent’s instruction.
Weber took stress leave and returned to work Sept. 9.
Employer changed tune on overtime requirement
While Weber was off work, Canada Post decided to investigate her situation and the area manager sent her a letter stating it would no longer request her to seek alternative child care. While the corporation reviewed her route, she was to notify her supervisor when she was unable to work overtime on her route and alternate arrangements would be made.
On Aug. 31, Weber filed a route verification request. When she returned to work, she felt the implementation of the area manager’s letter was done grudgingly by the staffing officer, with whom she had a tense relationship. Weber claimed whenever she reported to this staffing officer that she would need overtime coverage, the staffing officer often refused and offered to cover a lesser amount of mail, expecting Weber to deliver the rest. Weber was often unable to deliver all the mail with which she was left.
This arrangement caused Weber significant distress, so the superintendent advised her to make her overtime coverage requests to other supervisors and avoid the staffing officer. Things improved somewhat for Weber, but she still often had mail she couldn’t deliver without incurring overtime.
In late September, Canada Post decided to have Weber carry her first relay bundle with her from the depot to avoid the regular delay she encountered at the first relay box. However, neither Weber nor the union were consulted about his change and Weber claimed the weight of this extra mail often exceeded that permitted by the collective agreement. She filed another grievance alleging ongoing harassment and differential treatment.
Through October and November, Weber regularly had to have her last two relay bundles of mail delivered by someone else because her first relay was late, and she also occasionally worked the overtime herself. Not much had been done with her route verification request of Aug. 31, so she filed another application. The superintendent informed Weber and the union there was nothing wrong with the route, but the union determined the analysis didn’t accurately reflect the problems with the route.
Canada Post reiterated that it wasn’t requesting Weber to change her childcare issues at the time, but it also asserted she had agreed to complete the full delivery of her route at least three times per week including Monday, a typically heavy mail day. Weber felt she had made no such commitment as this would be impossible to do without overtime, making her unable to pick up her daughter after work. She filed another grievance.
Weber felt she was under increased scrutiny and on Jan. 10, 2012, before she left to deliver mail, she was given a notice of interview to discuss her “departure and end time… and your overall job performance.” Things escalated with Weber telling the staffing officer to “mind your own business.” Weber was given an suspension for insubordination, but this was later removed from her record.
At the interview, Weber was told allegations of time-wasting had been made against her. Weber suspected the staffing officer was the source of the allegations and nothing came of the interview.
Weber complained to the area manager of continuing harassment and the area manager responded with a letter stating the corporation was willing to accommodate her from performing overtime for one month up to March 2, 2012, so she could make the necessary childcare arrangements to perform her duties, including overtime, in the future. Weber filed another grievance implying discrimination based on family status.
Weber took steps to self-accommodate by bidding on a position as a relief letter carrier and then another full-time position at a depot in Waterloo, Ont.
The arbitrator found Weber’s childcare needs “fit clearly within the definition of ‘family status’” as defined by the Federal Court of Appeal in Canadian National Railway Co. v. Seeley and other decisions. Weber incurred legal obligations to her child and the daycare centre that required her to pick up her daughter by 4 p.m. Though emergency arrangements could be made occasionally, “repeated failure to meet the pickup time would undoubtedly mean that the child would be asked to leave the daycare,” a situation that would happen if Weber was asked to perform all necessary overtime on her route, said the arbitrator.
The arbitrator also found that Weber had already made arrangements to balance her work and childcare obligations and it was Canada Post’s restructuring that “upset the balance.” There were no other childcare obligations available to Weber, other than a transfer to another depot with a different schedule, which Weber ultimately did seek.
“I do not think it was reasonable to expect (Weber) to change the established routines that permitted her to be both a mother and an employee,” said the arbitrator. “Even if alternatives had been available, I do not think it would have been unreasonable for (Weber) to resist making such changes if not absolutely necessary.”
The arbitrator also found the route assessment was flawed and didn’t address the issue causing the need for frequent overtime on the route. As a result, even when it was obvious “the process had gone off the rails,” nothing was done to fix it, said the arbitrator.
The arbitrator determined that Canada Post's initial demand for Weber to perform overtime on her route was discrimination based on family status. When the corporation rescinded the requirement, it began accommodating her. However, its ultimatum that she find alternate childcare arrangements so she could work overtime halted the accommodation and discriminated against her once again. In addition, the various meetings and corrective actions regarding her performance and attendance caused Weber anxiety and stress, said the arbitrator.
The arbitrator ordered Canada Post to pay Weber $6,500 for pain and suffering from the discrimination, noting there was no medical diagnosis regarding her stress. The arbitrator declined to award any punitive damages, noting that Canada Post “proceeded based on its understanding of the law, and for the most part got it right” with no wilful or reckless conduct on its part.
For more information see:
• Canada Post Corp. and CUPW (Weber), Re, 2016 CarswellNat 949 (Can. Arb.).
• Canadian National Railway Co. v. Seeley, 2014 CarswellNat 1421 (F.C.).
