Increased overtime expectations discriminate against worker with small child

Restructuring led to larger mail load for Ontario letter carrier

Canada Post discriminated against a letter carrier when it told her she had to change her childcare arrangements so she could work overtime under a collective agreement provision, an arbitrator has ruled.

Jessica Weber was a letter carrier for Canada Post in Kitchener, Ont. Canada Post’s collective agreement with the Canadian Union of Postal Workers (CUPW) included an overtime provision stipulating “insofar as practicable, overtime on an employee’s route or assignment will be performed by the employee assigned to that particular route.”

It was expected that if an employee couldn’t finish her route during normal hours, she would
 notify her supervisor and continue until all mail had been delivered.

The collective agreement also stated “to help employees in these situations, the corporation shall determine if the extra work can be managed in a way that would avoid or limit unwanted overtime on an employee’s own route.”

The appendix also indicated management would make “reasonable efforts” to have overtime performed by other letter carriers if family commitments or personal needs interfered with an employee’s ability to work overtime.

Challenges for employee

The overtime practice had potential problems for Weber, who had a young daughter she had to pick up by 4 p.m. each day. Her husband worked evening shifts and couldn’t pick up their daughter and the daycare didn’t allow for late pickups. There were no other daycare options available.

Normally, Weber was able to complete her route and leave work in time to pick up her daughter. However, in the summer of 2011, Canada Post restructured the Kitchener depot and changed the delivery routes. So Weber met with the depot superintendent, a supervisor and a union official to explain she couldn’t do overtime because of her childcare issues.  The superintendent told Weber she would be expected to deliver all the mail, even if it involved overtime.

A few days later, Weber told her supervisor before leaving on her route that she would be in an overtime situation and asked that her undelivered mail be covered by someone else. Weber was allowed to leave mail in relay boxes, but she was called in to an interview to discuss matters.

The superintendent was dubious about Weber’s claims her route wasn’t structured properly but told her that route measurement officers were reviewing it. He then told Weber she had one more week to “make other arrangements for your childcare issues,” after which she would be required to perform any overtime needed for her route under the collective agreement.

Weber went on stress leave and Canada Post decided it would no longer request that she seek alternative child care. Going forward, she was to notify her supervisor when she was unable to work overtime and alternate arrangements would be made.

When Weber returned to work on Sept. 9, she felt the arrangement was done grudgingly by the staffing officer, with whom she had a tense relationship. Weber complained and the superintendent advised her to make requests to other supervisors. The situation improved somewhat, but she often had mail she couldn’t deliver without incurring overtime.
Through October and November, Weber regularly had to have mail delivered by someone else because her first relay was late, and she also occasionally worked the overtime herself.

The superintendent informed Weber and CUPW there was nothing wrong with the route, but CUPW felt the analysis didn’t accurately reflect the problems with the route.

Canada Post reiterated that it wasn’t requesting Weber to change her childcare issues at the time, but it also said she had agreed to complete the full delivery of her route at least three times per week. Weber said she had made no such commitment as it would be impossible to do so without incurring overtime.

Weber complained of continuing harassment so the area manager allowed her to avoid overtime for one month so she could make the necessary childcare arrangements to perform her duties — including overtime. Weber filed a grievance implying discrimination based on family status.

Arbitrator weighs in

Arbitrator Kenneth Swan found Weber’s childcare needs fit clearly within the definition of “family status” as defined by the Federal Court of Appeal in earlier decisions. Weber had legal obligations to her child and the daycare centre that required her to pick up her daughter by 4 p.m. on a regular basis. Though emergency arrangements could be made occasionally, “repeated failure to meet the pickup time would undoubtedly mean that the child would be asked to leave the daycare,” said Swan.

Swan also found the route assessment was flawed and didn’t address the issue causing frequent overtime. Even when it was obvious “the process had gone off the rails,” nothing was done to fix it, said Swan.

Swan determined that Canada Post’s initial demand for Weber to perform overtime under the collective agreement was discrimination based on family status. When it rescinded the requirement, it began accommodating her. However, its ultimatum that Weber find alternate childcare arrangements so she could work overtime again halted the accommodation and discriminated against her once again, said Swan.

Swan ordered Canada Post to pay Weber $6,500 for pain and suffering from the discrimination, noting there was no medical diagnosis for her stress.

He declined Weber’s claim for punitive damages, noting that Canada Post “proceeded based on its understanding of the law,” with no willful or reckless conduct on its part.

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