Ontario worker said shift change interfered with custody arrangement for daughter
Accommodation is a two-way street — both the employer and the employee must participate in the process. That’s why the Ontario Human Rights Tribunal dismissed a worker’s complaint that his family status wasn’t accommodated by an injury-related shift change schedule.
Steve Linklater was a coil handler technician in Essar Steel Algoma’s steel production facility in Sault Ste. Marie, Ont. He worked 12-hour shifts on an eight-day rotation — two 12-hour days shifts from 5 a.m. to 5 p.m. followed by 24 hours off and then two 12-hour overnight shifts from 5 p.m. to 5 a.m.
Linklater was separated from his spouse and had joint custody of his young daughter. The custody schedule was arranged around his shift schedule so he could pick up his daughter the morning after his second night shift and keep her for the two nights that he was off before dropping her off either at school in the morning or at her mother’s house in the evening.
On Jan. 4, 2016, the tip of one of Linklater’s fingers on his right hand was crushed between two steel plates. The doctor who treated him wrote a note that indicated Linklater would be unable to use his right hand for work — meaning Linklater wouldn’t be able to perform the tasks of his coil handler position. Despite his injury, Linklater was assigned to help another worker with tasks. However, it became evident that the modified work wasn’t of value and the company determined he would be of better use performing office work.
The superintendent in charge of the facility and Linklater’s supervisor decided to have Linklater speak to all employees about the company’s job safety practice manual in the lunchroom. Linklater would have to work eight-hour shifts from 7 a.m. to 3 p.m.
The change reduced Linklater’s hours to 40 every week from 48 every eight days and he lost a shift premium for working two night shifts every week. Linklater objected and said it would also disrupt or impact the time he could spend with his children — though he didn’t mention custody access was based on his 12-hour shift schedule.
Linklater met with the superintendent and said he wanted to stay on 12-hour shifts for “family reasons, money.” The superintendent said Essar Steel wouldn’t pay two people to do one job, so Linklater couldn’t remain as a coil handler technician if he could not perform the duties of the position. In addition, it was standard procedure to move injured workers to eight-hour shifts when they were unable to do their regular job.
Linklater began working the eight-hour shift on Jan. 13 and unsuccessfully asked again to be moved back to 12-hour shifts, though during the first week, there was no conflict with the custody order. Eventually, his union sent an email on Jan. 22 outlining Linklater’s “court-ordered access to a child which he is now not able to follow because of a schedule change” and requested a return to the 12-hour shift schedule.
The first conflict with the custody order happened on Jan. 25. Because his eight-hour shift started at 7 a.m., Linklater had to arrange for his ex-wife to pick their daughter up the previous evening, costing him a night and a morning with her.
Linklater met with the superintendent and his supervisor on Jan. 27 to discuss options. They asked Linklater to come up with a different solution, but he insisted the 12-hour shifts were the only thing that would work with his custody order. Management agreed to return him to 12-hour shifts once he had medical clearance, so Linklater returned to the 12-hour shift on Feb. 4.
However, Linklater filed a human rights complaint alleging that, for the period before his return to the 12-hour shift, Essar Steel discriminated against him based on his disability because he earned less in the accommodated position and based on his family status when it failed to accommodate his child custody obligations by changing his work schedule.
Tribunal weighs in
The tribunal found it was reasonable for Essar Steel to move Linklater to the eight-hour shift where there was work he could do. Linklater’s restrictions didn’t say he couldn’t work 12-hour shifts, but he wasn’t entitled to stay on that shift if he couldn’t do the work.
The tribunal also found that Linklater didn’t inform Essar Steel of his court-ordered custody arrangement when discussing accommodation options. The company was unaware of it until the union’s letter. In addition, at the time of the union’s letter, Linklater had yet to lose any time with his child and the letter didn’t indicate a specific conflict was coming up.
Once Essar Steel became aware of the conflict, it took measures to rectify the situation, agreeing to move Linklater back to 12-hour shifts as soon as he provided medical clearance, found the tribunal. When he did, the move was made immediately. As a result, Essar Steel met its duty to accommodate once it was aware of the need for accommodation and would likely have taken steps to address the Jan. 25 conflict had it known earlier.
“[Essar Steel] took appropriate actions based on the information it had,” said the tribunal, adding that it was up to the company to determine the method of accommodation — not Linklater, who wanted only to return to 12-hour shifts and refused to consider other options.
The tribunal also found that, because Linklater couldn’t do the jobs on the 12-hour shift, the loss of the night-shift premium and the difference in hours — totalling about $250 — wasn’t discrimination. Linklater was paid for the work he performed and wasn’t entitled to be paid as if he could perform the jobs on the 12-hour shift.
The tribunal determined that Essar Steel did not discriminate against Linklater’s family status or disability and dismissed his complaint.
For more information, see:
• Linklater v. Essar Steel Algoma Inc., 2019 HRTO 273 (Ont. Human Rights Trib.).
Jeffrey R. Smith is editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.
