Employee with child care issues didn't abandon job: Tribunal

Alberta human rights decision highlights employer’s responsibility to accommodate childcare obligations as family status

An Alberta employer should have accommodated the childcare needs of an employee coming off of maternity leave, the Alberta Human Rights Tribunal has ruled.

Leah Clark filed a human rights complaint on April 11, 2011 against her employer, Bow Valley College, that was heard by the Alberta Human Rights Tribunal. Her complaint alleged discrimination on the ground of family status after her employment was deemed to be abandoned by the college. Clark did not return from maternity leave on the date required by the college because she could not locate suitable childcare for her son.

Clark had been a nursing instructor at the college since March 2007, and was approved for maternity leave from Feb. 1, 2010, through Jan. 31, 2011. Clark went on approved sick leave in November 2009, and her son was subsequently born on Jan. 2, 2010, nearly seven weeks premature. In June 2010, the college sent a letter to Clark which stated that her maternity leave was February 2010 to Jan. 30, 2011. Clark, however, became aware in November 2010 that she had been placed on the instructor schedule for Jan. 3, 2011, a month earlier than her expected return. The college had moved the end date of Clark’s maternity leave forward a month, yet she had not been informed until November 2010.

Clark contacted the college and explained that while she had childcare in place for February 2011, she had no other childcare options available for January. The college made no further inquiries with Clark as to why she had no other childcare options and denied her request for additional leave past Jan. 10, 2011. The college subsequently sent a letter to Clark with two childcare brochures enclosed, with the message that she should “avail herself of these services” and that if she did not report to work by Jan. 10, 2011, she would risk termination. Clark testified to the fact that due to her financial situation and the sickness of her son, she could not find other childcare arrangements for January 2011.

When Clark did not report for work by Jan. 13, 2011, the college considered her to have abandoned her position and she was deemed to have resigned from her employment. The college’s response to Clark’s human rights complaint originally relied on the fact that the collective agreement in place provided a maximum amount of 52 weeks of maternity and parental leave. While this argument was abandoned at the hearing, the Alberta Human Rights Commission Tribunal Chair confirmed that all collective agreements must comply with human rights legislation, and the 52-week maximum maternity and parental leave in the collective agreement had no impact on the human rights analysis.

Ultimately, the chair found that there was discrimination against Clark on the basis of family status, and the college did not fulfill its duty to accommodate Clark. Clark was awarded $15,000 for general damages, and loss of income damages for about four months.

Employers must meaningfully acknowledge protected human rights

The college’s response of providing two childcare brochures and advising Clark to “avail herself of these services” was not considered by the chair to be a meaningful acknowledgment of Clark’s family status. Further, once Clark communicated her childcare problem, she was requesting accommodation. At that point, the college should have gathered information to assess whether accommodation was required. The chair found that if the college had genuinely engaged Clark with respect to her concerns, it would have been able to accurately assess her childcare situation and the parties could have attempted to find possible ways to accommodate her.

This case provides a reminder that employers need to be proactive when an employee raises a concern that falls within the enumerated grounds protected by human rights legislation, regardless of the terms of employment. Employers should ensure that they not only seriously address the concern, but they also work with the employee to gather sufficient information, and assess whether an accommodation is required or possible.

For more information see:

Clark v. Bow Valley College, 2014 CarswellAlta 2261 (Alta. Human Rights Trib.).

Christopher Dormer is an associate in the Litigation Practice Group in Calgary. Chris carries on a general litigation practice with an emphasis on corporate/commercial disputes; employment and labour law; debtor/creditor claims; security enforcement and creditor collection; injury claims; and builders' lien matters. He can be reached at (403) 698-8761 or [email protected]

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