Family needs vs. family choices

Employees said schedule change discriminated against their family status but not every negative impact can be accommodated

Four employees of an Ontario electricity distribution company cried foul when their shift schedule was altered 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 that employees should deal with themselves.

The four employees worked as linemen for Power Stream in Vaughan, Ont. As part of their collective agreement, employees had a choice of working five eight-hour shifts, from 7:30 a.m. to 4 p.m. each day, or four 10-hour shifts, from 6:30 a.m. to 5 p.m. each day, 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.

Shift change impacted child care

The four employees were concerned the new shift would negatively impact their child care responsibilities. They requested Power Stream let them continue working the five-shift schedule, but Power Stream refused. 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 two young children, for whom he had joint custody. When the schedule changed to longer shifts, Baddely couldn’t find a day care to keep them for the longer hours. 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. This was no problem while he worked the shorter shifts, but he was unable to do so on the longer shift. The younger son went to a day care after school, but it wouldn’t keep him after 6 p.m. without extra fines. The younger child couldn’t be bussed home because he had special needs and went to a special school outside the district. When Thompson started working the longer shifts, he said there was less time to do homework and extracurricular activities. However, after he filed the grievance, his wife stopped working and took over picking up and dropping off the children.

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 day care after work. This day care also would not keep the 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 to 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 said 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 in other cases that “an employer action which has any negative impact on a family or parental obligation is prima facie discriminatory.” It agreed parents must provide necessities to their children and live up to parental obligations, but it said 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 board said 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. However, it found the concerns raised by the employees did not fall into this category. Bender and Apps were able to rearrange their pick-up and drop-off duties with their spouses and, though inconvenient, 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, the board did find Power Stream discriminated against Baddely because of his custody arrangement. Baddely had carefully arranged his life around the five-shift schedule and 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 Source to discuss accommodation options with Baddely. See I.B.E.W., Local 636 v. Power Stream Inc., 2009 CarswellOnt 7325 (Ont. Arb. Bd.).

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