Grocery chain’s failure to exempt clerk from shift rotation so he could care for ill wife was discrimination: Panel
An Alberta grocery store chain discriminated against an employee when it didn’t exempt him from night shift duties so he could look after his ailing wife, an Alberta human rights panel has ruled.
Keith Rawleigh worked at several Canada Safeway stores throughout Alberta for 27 years. He joined a Safeway store in Calgary as a full-time general clerk in 2002. Rawleigh primarily worked the early morning shift in the produce department, though store policy and the collective agreement required all general clerks to rotate through all shifts, including the night shift. Rotation to the night shift wasn’t necessary at stores where there was a full-time permanent night crew that had sufficient employees to cover the shift.
Wife’s vision deteriorating
Rawleigh’s wife suffered from retinitis pigmentosa, a medical condition that involved degeneration of retinal cells and caused night blindness, reduced peripheral vision and eventually legal blindness. During pregnancies in 1998 and 2000, she experienced significant loss of vision. By 2002, she was deemed legally blind.
Rawleigh’s wife became emotionally traumatized from becoming legally blind and required counselling to help her adjust to the change. She also required assistance in the evening, which Rawleigh was able to provide when he worked on the morning shift.
Soon after Rawleigh began working at the Calgary store, his manager asked him about rotating to the night crew. Rawleigh said he was unable to do so because of his wife’s medical condition. He provided a letter from his wife’s doctor outlining her condition and why she needed Rawleigh to be home at night. Rawleigh believed at that point he was exempted from night shift duty, though no official exemption was recorded. As it turned out, the store had a permanent night crew for the next two years and no shift rotation was necessary.
In late summer 2004, a member of the store’s permanent night crew transferred, which meant general clerks would have to start rotating onto night shifts. Rawleigh was told he would be included in the rotation, but he said he had an exemption. In fact, his wife needed care more than ever, as over the course of 2003 and 2004 she had been diagnosed with another condition that caused dizziness, poor balance and severe headaches. She had also experienced stroke symptoms and was scheduled to have brain surgery in November 2004.
No record of night shift exemption
The store had a new manager at this time who wasn’t aware of Rawleigh’s initial exemption request in 2002. The manager checked with HR, but HR didn’t have a record of any exemption. As a result, Rawleigh was scheduled for night shift rotation but was one of the last to rotate.
Rawleigh requested a compassionate care leave of absence from Nov. 15, 2004, to Dec. 11, 2004, so he could care for his wife after her surgery. However, Safeway told him he would have to use one week of vacation he still had available before it granted him a leave of absence.
The stress of his work circumstances and his wife’s surgery were compounded by the death of Rawleigh’s wife’s grandmother shortly before the operation and Rawleigh received a medical certificate to take four weeks off work beginning Nov. 12. After his wife’s surgery on Nov. 15, he was unsure if he was on an unpaid leave of absence or a medical leave with disability pay. Two weeks later, Safeway’s insurance carrier denied his claim for short-term disability benefits.
When Rawleigh came back to work after Christmas, he couldn’t find his name on the schedule and his manager told him he was scheduled to rotate to the night shift. Safeway felt didn’t need the exemption anymore because his wife’s medical condition had been fixed by surgery. The company said it was no longer accepting “second-party illnesses” as grounds for exemptions and added an exemption would hurt morale and create animosity among other employees who were required to rotate into the night shift.
Seemingly at a dead end, Rawleigh requested a transfer to another store. However, his request was denied because Safeway said the other store didn’t need him and it would no longer accommodate him because of his wife’s illness.
Day-time cashier position offered as accommodation
Rawleigh explained the condition for which his wife had surgery was separate from her eye condition and his wife still needed care in the evenings. Once this was clarified with additional medical certificates, Safeway began exploring options for permanent accommodation.
In mid-January, Safeway offered Rawleigh a transfer to the position of full-time cashier, which was day shift-only and paid slightly less than a general clerk. However, Rawleigh considered it a demotion and once again suggested a transfer to another store that had a position that didn’t require night work. As a last resort, he offered to become part-time.
Safeway maintained the cashier job was the best option for accommodation, but Rawleigh switched to part-time, transferred to another store and filed a complaint for discrimination based on his family status.
The human rights panel found Rawleigh wasn’t exempted from night shift work from 2002 until the fall of 2004, but he just wasn’t asked to pull night shift duty because Safeway had a full-time night crew at the store. A lack of communication led Rawleigh to think he was exempted, said the panel.
Discrimination based on family status
The panel also found Rawleigh’s circumstances met the Alberta Human Rights Act’s definition of family status as a ground of discrimination, which included relation “by blood, marriage or adoption.”
“Safeway, for genuine business reasons, adopted the standards of a rotation through the night crew for general clerks. This standard is neutral in its face and was applied equally to all the employees who were in the same job classification as (Rawleigh). However, (Rawleigh) had a unique family status situation, which made the implication of this standard discriminatory to (Rawleigh’s) unique needs,” said the panel.
Because Rawleigh thought he had an exemption for two years, the sudden change of the schedule didn’t give him the opportunity to make other arrangements for his wife, said the panel. Imposing this demand on him and telling him it would not accommodate “second-party illness” constituted discrimination.
The panel found Safeway met the first two parts of the standard three-part test to disprove discrimination: The shift rotation policy was adopted for legitimate business reasons and in good faith to keep it fair for employees. However, it failed the third part because it didn’t meet its duty to accommodate.
Safeway acted on outdated medical information that didn’t account for Rawleigh’s wife’s second condition and failed to follow up on any accommodation options other than the cashier position, which Rawleigh considered a demotion because of the difference in skill set and pay from his existing job. Making Rawleigh a cashier was the most convenient option for Safeway, said the panel, but it didn’t investigate the level of hardship for other options. The panel also found Rawleigh only chose to transfer to part-time because he had no other choice.
“Options of having (Rawleigh) work part-time in different departments within the same store, or even part-time at other stores could have been explored, but these options were never even considered,” said the panel. “(Rawleigh’s) refusing to accept the only formal offer of accommodation should not be seen as non-co-operation since that offer should be viewed as an option of last resort.”
The panel ruled Safeway discriminated against Rawleigh based on his family status and didn’t fulfill its duty to accommodate. It held off on ordering a remedy until it received all of the necessary information on Rawleigh’s loss of salary, pension and benefits.
For more information see:
•Keith Rawleigh v. Canada Safeway Limited (Sept. 29, 2009), Brenda Chomey-Chair (Alta. Human Rights Panel).
