Single dad must find babysitter

Normal parenting obligations not enough for employee to refuse overtime that was regular part of the job: Tribunal

The British Columbia Human Rights Tribunal has drawn a line for family status accommodation, ruling a single father’s parenting obligations do not require special accommodation by his employer.

Steven Falardeau worked as a mover for various companies over a period of 17 years. He worked for Vancouver-based Ferguson Moving and Storage from April 2004 to May 2006 and was rehired in September 2007. During his first stint with Ferguson, Falardeau was often required to work overtime because of either a single job taking a long time or several smaller jobs running later in the day. This was a fairly common practice at the moving company and overtime was a fairly regular occurrence.

When Falardeau rejoined Ferguson in September 2007, he knew from his previous experience his hours would sometimes be irregular and overtime would be required on occasion, though Ferguson didn’t specifically tell him this. Falardeau did work overtime on several occasions over his first three months with Ferguson.

Childcare arrangements when working late

Falardeau was a single parent and he didn’t want his 10-year-old son to be home alone after school, so on days he worked late he made arrangements for a daycare service to pick up his son after school and look after him until 6 p.m. If Falardeau worked past 6 p.m., he would arrange for his parents or his girlfriend to pick up his son from daycare.

Shortly after Falardeau started his second stint with Ferguson, he delivered kitchen cabinets to a construction site for a commercial customer. He told his manager he didn’t like working on construction sites, but he performed jobs there on four other occasions over the next two months.

Fired for refusing overtime

On Nov. 29, 2007, Falardeau was angry because he couldn’t find his tools. His manager told him he would need to be available for overtime for a job for a commercial customer that started in the late afternoon. Falardeau said he would stay and finish whatever he was working on and would make the necessary childcare arrangements but he would not start a new job after 4 p.m. because he needed to be home for his son. Ferguson found his overtime refusal unacceptable and fired him.

Falardeau filed a human rights complaint, arguing he had a human right to refuse overtime work. Ferguson should have been satisfied with his willingness to make childcare arrangements when a job went past 6 p.m., he said, and allowed him to refuse any job that started late. He asked for one year’s salary after taxes — $35,000 — as damages and a letter of apology from Ferguson.

The tribunal found “a well-established pattern of overtime hours to meet the needs of its customers” was a regular part of its business. Ferguson was also aware Falardeau made childcare arrangements whenever he had to work overtime and he had never told the company of any problems when he had to work late. Because Falardeau had worked overtime on many occasions over both of his stints with Ferguson, the tribunal found it had no reason to think there were any childcare issues it should consider.

“The fact that neither the pattern of Mr. Falardeau’s work, nor his childcare demands or arrangements had changed, suggests that he may have made an issue of overtime because of his dislike of work on construction sites, rather than because of his family responsibilities,” said the tribunal.

Child had no special needs

The tribunal found no evidence Falardeau’s son had any special needs that required unique arrangements, nor any that Falardeau’s childcare service couldn’t look after when he worked later than usual. It also stipulated Falardeau was mistaken when he argued there was a human right to refuse overtime. The only human right that could come into play for Falardeau would be family status, the tribunal said, but a prima facie case for discrimination had not been established.

“The evidence in this case established no other factors which would take Mr. Falardeau’s case out of the ordinary obligations of parents who must juggle the demands of their employment and the provision of appropriate care to their children,” said the tribunal.

The tribunal found no indication Ferguson’s requirement for Falardeau to work overtime constituted “a serious interference with a substantial parental or other family duty or obligation.” Therefore, Ferguson had no duty to accommodate him. Falardeau’s complaint was dismissed.

For more information see:

Falardeau v. Ferguson Moving, (1990) Ltd., 2009 CarswellBC 2125 (B.C. Human Rights Trib.).

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