Family status must be considered fairly and evenly
against a working mother is “very far-reaching” and sets a significant precedent for working parents, according to the Public Service Alliance of Canada (PSAC).
“This is not the first time an employer has been told this,” said John Gordon, union president. “But now any employer who doesn’t take it seriously will have no option but to do so.”
The tribunal was asked to decide whether the Canadian Border Services Agency (CBSA) was justified in its response to Fiona Johnstone’s request for more regular hours after the birth of her first child in 2004.
She had been working several different shifts. However, because both she and her husband worked rotating shift schedules at Pearson International Airport, finding childcare was difficult. She eventually found family members who could care for her child three days a week.
Johnstone asked the agency to if she could work three static 13-hour shifts. She also suggested a three-day, 12-hour-shift schedule. The CBSA denied her requests and instead offered her part-time hours, which would have affected her pension status.
The agency said it had an unwritten policy not to provide full-time hours to employees requesting accommodation for child-rearing responsibilities.
According to evidence provided by Norm Sheridan, district director of passenger operations for CBSA at Pearson International Airport, “workers seeking accommodation for childcare obligations are doing so due to choices they have made in life, for which the employer bears no responsibility.”
However, the agency acknowledged at the tribunal this unwritten policy is applied unevenly. There are CBSA employees working part-time at 36 hours a week, employees working full-time static shifts and others who have been allowed to maintain full-time pension and benefit entitlements, despite working part-time.
The agency also conceded it has and continues to accommodate employees for medical and religious reasons and in cases where the employee’s child has medical needs. These requests are assessed on an individual needs basis.
Gordon said there is no reason why accommodating family status can’t be assessed in the same manner.
“The duty to accommodate is not one-size-fits-all,” he said. “It’s up to employees to say, ‘Here are my circumstances’ and have the employers say, ‘Here’s our realities’ and come up with a way to work it out.”
The issue has been tested once before. In 1993, Brown v. National Revenue (Customs & Excise), the tribunal found that parents are under an obligation to ask employers for accommodation so they can best serve their responsibilities at work and at home.
That tribunal also ordered National Revenue – Customs and Excise, the predecessor of the CBSA, to develop a policy to ensure employees were not mistreated in future. That hasn’t happened yet, according to evidence given in the Johnstone case.
Gordon said the $35,000 awarded to Johnstone for general and special damages for pain and suffering, as well as lost wages and benefits from 2004, underscores the tribunal’s dissatisfaction with the agency’s efforts since the Brown decision.
“They’re saying, ‘You didn’t do it then so now you’ll have to pay full damages,’” he said. “This particular case says each circumstance deserves its own review.”
Gordon is careful to point out the decision does not mean every childcare need requires accommodation.
“It’s about fairness and decency,” he said. “An employee’s responsibility is to get the job done. The employer’s job is to find fairness and balance for them to do it. They have to think over an employee’s career. They only build a family over a certain amount of that.”
