Employer couldn’t explain why allowing worker to work straight day shifts couldn’t be done
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 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 worker moved to Fort McMurray from Newfoundland and she had a young son whose father also moved to Fort McMurray but did not live with the worker, though he sometimes cared for the child.
In February 2012, the worker gave birth to a second son by a different man. While on maternity leave, she applied for the 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 started the new position in November 2012.
Shift work and childcare too much
After seven days of night shifts, the worker requested that 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 was no longer able to provide any childcare assistance and the father of her younger son had no involvement. 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 explained to SMS that 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 support 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. SMS denied the request and the union filed a grievance claiming discrimination based on family status.
An arbitrator found that family status included childcare responsibilities and SMS’ rule that welders must work night shifts “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 which 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 with a straight day shift.
SMS appealed to the Alberta Court of Queen’s Bench, arguing it did not have an obligation to accommodate the worker’ 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 cost — 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.
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 a lot of money on childcare — the worker experienced that other welders didn’t, due to her status as a single parent. These adverse effects were a direct result of the 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, because she would still have to spend more money on childcare while she wasn’t at work but needed to sleep, said the court.
The court pointed to the test for prima facie discrimination based on family status established by the Federal Court of Appeal in Johnstone v. Canada:
• A child is under the employee’s care
• 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 that the worker’ circumstances met this test, placing the onus on SMS to prove there was a bona fide occupational requirement for rotating shifts. The court also agreed with the arbitrator’s principles that the choices to become a working parent “do not negate a claim of discrimination” and it was reasonable to expect employers to develop rules and policies that help share the burden of family responsibilities and 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 and paid childcare was her only option, which she had reasonably investigated.
