Employers should find workable solutions for employees with family obligations: PSAC
The union, the Fraternité des policiers et policières de Montréal, demonstrated in the streets of Montreal on Feb. 28 to protest a change in schedule that would see a three-day workweek removed, according to local media reports.
The schedule was part of a pilot project that ran for 14 months. The pilot had officers working a longer shift, but fewer days per week. Officers worked three days one week and four days the next, according to media reports.
The pilot project is set to end March 20, after the deadline for this issue.
The union declined to comment for this story. It has filed a grievance, which will reportedly be heard on March 21.
During the protests, union president Yves Francoeur was quoted in local media as saying that the changes would force officers to go back to a shift schedule from the 1970s.
André Giroux, a partner at Davis LLP in Montreal, was a police officer in the city for about a decade nearly 20 years ago.
“Back then, they had a schedule whereby you would work three days and have two days off out of a 35-day schedule, but this meant there were five different teams that were working around the clock,” he said.
Because there are officers who are married to other police officers on the Montreal police force, there are some who say this case could be viewed on a family status grounds, though Giroux isn’t one of them.
“I’m not sure it would fall under family status,” he said.
In Quebec, family status is not a protected ground under the province’s human rights charter, said Giroux.
“It could be viewed as a similar ground as those protected and therefore included, (but) we have no decisions on that.”
At the time switching from one team to another was feasible, he said. If the employer refused that, that would be an issue, said Giroux, adding he’s not sure it would be a protected ground under human rights.
“Although you have discretion (with shift teams) you have the obligation to exercise that discretion in a fair way to the employees,” he said.
Unless the employer has a reason to refuse an employee who asks to change shifts to accommodate family obligations, it’s possible an arbitrator would come to the conclusion the police department would be acting in an abusive manner and could order them to change the shift to accommodate family obligations, said Giroux.
This solution would help accommodate families in individual cases, he added, but not necessarily if the issues were widespread.
A recent family status decision
A federal case on family status is making its way through the courts. In January, a federal court upheld a 2010 Canadian Human Rights Tribunal decision on the case of a border services agent, Fiona Johnstone, whose shifts caused family care issues.
“The ruling means that the employer has the obligation to find workable solutions on a case-by-case basis so that workers like Fiona Johnstone can balance work and family, to the point of undue hardship,” said a statement from the union, the Public Service Alliance of Canada (PSAC).
Johnstone filed a complaint to the tribunal on family status grounds because her work schedule was irregular, unpredictable and changed every 56 days, according to Lisa Addario, legal counsel with PSAC in Ottawa.
“So the case revolved around some fairly unique facts. However, this decision reflects a growing trend to recognize that family status as a prohibited ground of discrimination in human rights law extends to parental responsibilities for child-care obligations and so it is a case that stands for the proposition that where parents have substantial family obligations employers will be required to try to find workable solutions,” said Addario.
The employer is currently appealing to the Federal Court of Appeal, which could take months or possibly longer, Addario said.
The employer made no case for undue hardship at the federal court, Addario said.
“CBSA is quite a large and sophisticated employer, it’s easier for larger employers to make arrangements with their employees than a mom-and-pop operation. But in any case where an employee can establish that a workplace shift interferes with a substantial family obligation, employers are obliged to consider whether there are workable solutions to assist an employee to balance their family responsibilities and their work.”
This is a case Addario says she can foresee other levels and jurisdictions considering in the future.
PSAC has also put out a statement echoing that sentiment. “Although the Johnstone decision applies to the federal sector, other jurisdictions will undoubtedly consider it when making their own rulings on family status discrimination,” said a news update from PSAC.
