Family status accommodation has its limits

Employee’s desire to help spouse with health issues care for special-needs children doesn’t invoke legal obligation for employer: Board

A federal government employee’s request to get home 30 minutes earlier to help his spouse care for special-needs children did not invoke a legal obligation to accommodate based on family status, the Canada Public Service Labour Relations and Employment Board has ruled.

Pascal Guilbault was a lawyer who was hired by the Department of National Defence (DND) in October 2011 to be a claims officer. The first few years of his tenure with DND went smoothly and he had a good relationship with his manager, who made it clear she was open to requests for flexibility to foster a positive work-life balance.

In January 2013, Guilbault emailed his manager with a “request for accommodation based on the Canadian Human Rights Act.” The request related to Guilbault’s family — his spouse had health problems and two of his four children had development difficulties. Guilbault asked for accommodation of his need to help take care of his family at the end of the day, by being allowed to take his two paid 15-minute breaks — allotted by the collective agreement — together at the end of the workday so he could leave 30 minutes earlier. He also invited the manager to contact the labour relations adviser to “explain to you the ins and outs of an employer’s duty to accommodate.”

Guilbault stated that this accommodation was needed to reduce the amount of tasks his spouse had to do during the day and allow him to help her in taking care of the children after school and daycare. He noted that he took care of the children for more than an hour every morning from when they woke up to when he went to work, but his spouse had them all from 4 p.m. until he arrived home at 7:15 p.m., which was a lot for someone with health issues.

The manager was surprised by the formality of Guilbault’s request since she had previously granted the possibility of modifying his schedule. It made her uncomfortable, so she consulted the human resources and labour relations departments. On Jan. 16, she met with Guilbault to clarify his needs and discuss different solutions — such as a compressed workweek, a variable schedule, part-time employment, starting earlier, driving to work instead of taking the commuter train, or changing daycares. However, Guilbault refused all of these options for various reasons, such as financial concerns or that it still wouldn’t allow him any more time at home. However, the manager insisted he couldn’t take his two breaks together at the end of the day, as they were described in the collective agreement to be rest periods to be taken during the day for occupational health and safety reasons.

Parties unable to reach solution

They couldn’t reach a solution and Guilbault filed a grievance on March 20, 2013, claiming DND’s refusal to find a “reasonable arrangement to accommodate my needs” and modify his work hours was discrimination based on family status, contrary to the Canadian Human Rights Act and the collective agreement.

DND rejected Guilbault’s grievance, finding there was no duty to accommodate in these circumstances. However, the manager still wanted to help Guilbault, so she suggested that they meet again to discuss options regarding his unpaid lunch break — which the collective agreement stated must be provided to allow employees to recharge and eat, but didn’t mention a specific duration.

The manager proposed that Guilbault take his two 15-minute paid breaks back-to-back with a one-minute interval, during which he could eat, and then take the unpaid 30-minute lunch at the end of the day. However, Guilbault reacted negatively to the proposal, believing he couldn’t combine his two paid breaks and he wouldn’t have enough time to eat his lunch. He then took his grievance to the next level.

On Jan. 9, 2014, DND’s director general of workplace management refused to find any discrimination but granted Guilbault permission to leave the workplace 30 minutes early each day “to meet your important family obligations at home,” by moving his lunch break to the end of the day.

Guilbault was disappointed since there was no acknowledgement of any discrimination, nor was there any indication he could combine his two paid breaks to have 30 minutes for lunch during the day. He also didn’t trust his manager any longer, so he refused to meet with her on how to implement the decision or sign a form. He took his case to the board and said he would continue to take his two breaks and 30-minute lunch pending a decision.

In August 2014, Guilbault filed a harassment complaint against his manager. DND determined it was unfounded, but a supervisor acknowledged Guilbault was unhappy and proposed combining Guilbault’s two paid breaks to create a half-hour lunch and allowing him to take his half-hour unpaid lunch at the end of the day. Guilbault accepted the offer, but maintained his discrimination complaint.

The board noted that Guilbault’s accommodation request was “not based on most employees’ general desire to spend more time with their families,” but instead was “based on what he felt were needs protected by the (Canadian Human Rights Act) under the heading ‘family status’ — the health problems of his spouse and two of his children.” Though his manager initially recommended he review his “family planning” — to which Guilbault took offence — they eventually came upon a possible solution. However, this solution wasn’t initially adopted and led to months of acrimony.

The board found that the reason for Guilbault’s request wasn’t necessarily childcare, but rather his spouse’s health. Guilbault not being able to arrive home earlier didn’t involve his legal responsibility towards his children, but rather him just wanting to help his spouse. However, there was no evidence they investigated the possibility of getting outside help, said the board.

“The fact remains that the employer cannot have a legal responsibility for the functioning of the family,” the board said. “The employer’s work rule must hinder the employee from fulfilling his or her legal obligations toward his or her children.”

As a result, DND’s initial refusal to grant Guilbault’s request didn’t hinder his ability to meet his legal obligations towards his family, so there was no discrimination, said the board.

The board also found that when DND finally did provide accommodation by allowing Guilbault to use his lunch break to leave 30 minutes early, it wasn’t a legal obligation but rather a moral one to help employees seek a work-life balance in good faith.

The length of time it took to implement the solution was not the employer’s fault, but rather because of “the inability of the people involved to agree” — including Guilbault’s “complete refusal to enter into discussions,” said the board. It acknowledged the case was “borderline,” but DND didn’t discriminate because Guilbault’s children weren’t in danger and his legal obligations were met. The grievance was dismissed.

For more information see:

Guilbault c. Conseil du Trésor (Ministere de la Défense nationale), 2017 CarswellNat 446 (Can. Pub. Service Lab. Rel. & Emp. Bd.).

Latest stories