Employer Did Not Discriminate When Work Schedule Altered

Accustomed to a lot of latitude in juggling the demands of her job and the responsibilities of caring for her developmentally challenged son, a worker for a Social Services Agency said that downsizing and organizational changes implemented by her employer discriminated against her on the basis of family status.

A Support Co-ordinator employed by a provincially funded agency that assists persons with disabilities, M.H. was a “front line” worker with 20 years’ service to her employer.

As a regular part-time employee, M.H. augmented her regular 22 hours per week with 10 hours per week credited as health and safety co-ordinator, which made her eligible for workplace benefits.

M.H.’s son, who has disabilities, was a client of the Agency and a participant in a program partially funded by the employer and supervised by M.H. The program was run out of a satellite facility where M.H. maintained an office.

Until funding difficulties forced the employer to make changes, M.H. enjoyed a great deal of leeway to manage her son’s care around her work responsibilities. M.H. was able to take advantage of a flexible work schedule that accommodated time off with minimal notice, work from home and the ability to monitor her son in an Agency-run program.

However, funding cuts to the Agency necessitated changes that wreaked havoc with M. H.’s arrangements.

Wage cut

Following a feasibility study, the employer found it could no longer rationalize funding the satellite space and it therefore proposed to relocate M.H.’s office. In addition, M.H.'s 10 hours per week as a health and safety co-ordinator were cut resulting both in the loss of her entitlement to benefits and a $3.00 per hour reduction in wages.

M.H. took the view that the employer’s moves represented harassment and were undertaken with a view to harm her. M.H. said the employer was failing to accommodate her and that she was being discriminated against on the basis of family status. M.H. grieved, seeking a return of her hours and the past practices that allowed her to operate with the degree of flexibility she has enjoyed over the years.

In fashioning a settlement, the arbitrator found no violation of the collective agreement or of the Human Rights Code.

By virtue of her seniority, M.H.’s hours and benefits were restored. However, the employer was entitled to enact new measures to take a firmer grip on working arrangements with respect to working from home, mileage claims, expenses, hours of work and time off.

As the arbitrator anticipated, the settlement caused some consternation from both parties, though, “it would be safe to say that the Grievor objected most of all and quite fiercely …”

“Those days are over”

M.H.’s allegations of impropriety were “misguided and overstated,” the arbitrator said, and her expectations of relief were “unattainable.” Times change, the arbitrator said, “matters are not as they once were at this workplace and change is necessary.”

“I admire the Grievor’s indomitable spirit; I am not of the opinion that she is driven by selfish motives. Rather, she has been driven for years mainly by a Mother’s care. Although the Grievor is fighting change and is convinced that she can fashion her own unique set of working conditions that are more palatable to her, this is because she was able to do so before. However, those days are over, she must now comply with the rules of the workplace, and I so find.”

Reference: Community Living Elgin and Ontario Public Service Employees Union, Local 151. F. M. Reilly — Sole Arbitrator. Peter Thorup for the Employer and Mihad Fahmy for the Union. February 16, 2010. 9 pp.

Latest stories