In a decision handed down on January 20, 2015,1 Quebec’s labour board, the Commission des relations du travail (CRT), reiterated that employers are not obligated, under An Act respecting labour standards(ALS) or the Quebec Charter of Human Rights and Freedoms (Charter), to modify their employees’ regular work hours so that parents who request it are given a schedule allowing them to achieve a balance between their family and work obligations.
Two weeks before she returned to work, Ms. Bouchard, a financial services manager at Honda de la Capitale, notified her employer that she was no longer able to observe her pre-maternity-leave regular work hours, which entailed working after 4 p.m. and sometimes until 9 p.m. She had been unable to find a child care service that remained open until 9 p.m., despite having made several inquiries, and she could not count on the help of family members. Ms. Bouchard therefore asked to leave every day at 4 p.m. Her employer denied her request.
Despite the employer’s refusal, on her first day back, Ms. Bouchard left at 4 p.m., citing family obligations. The next day she was given a first written warning and again left at 4 p.m.
The same thing happened the day after that. The following day, the employer suspended her for two weeks without pay, stating that her failure to observe her regular work hours constituted insubordination and, if she reoffended, she would be dismissed.
On her first day back, Ms. Bouchard once again failed to observe her regular work hours. The employer, feeling there was a difference between allowing an employee to take time off occasionally for family obligations and modifying his or her regular work hours for that purpose, dismissed her.
The worker filed two complaints with the CRT challenging her dismissal, alleging prohibited practices and dismissal without good and sufficient cause.
First, the CRT determined that there had been no violation of Section 81.15.1 ALS, which entitles employees to take maternity, paternity or parental leave and be reinstated in their former position “with the same benefits.” In this instance, Ms. Bouchard was not asking to be given her former “same benefits” work hours, but, rather, work hours that were substantially different from those she had worked prior to being granted maternity leave.
The CRT then found that Ms. Bouchard had not established that she had made use of the right set out in section 79.7 ALS, i.e. the right, after advising the employer of her absence and taking all steps to limit the leave and the duration of the leave, to be absent for up to ten days per year to fulfill obligations relating to the care of her child. In so doing, the CRT indicated that requiring work hours to be modified for an indeterminate period to accommodate an employee’s difficulties in balancing her professional and family obligations is not covered by the ALS. According to the CRT, [translation] “(…) the Act does not create any right to work hours adapted to the difficulties posed by achieving such a balance.”
To put it another way, a distinction must be made between taking a day off when regular work hours are not compatible with family obligations and requiring new work hours that are compatible with those obligations.
In any event, the CRT added that, in the case at issue, the worker had not proven she had taken reasonable steps to avoid the requested leave. The CRT indicated that it was not sufficient to have merely taken steps to identify a child care service that was open in the evenings.
Finally, the CRT rejected the worker’s argument that her dismissal had not been made for good and sufficient cause within the meaning of Section 124 ALS because, in her opinion, it contravened the Charter, which prohibits any discrimination based on civil status.
Supported by a recent decision by the Quebec Court of Appeal,2 the CRT determined that a distinction must be made between situations where discrimination arises directly from an individual’s role as a parent3 – for example, refusing housing to an individual because he or she has children – and situations where exclusion results from an employee’s unavailability. The first case is a Charter violation; the second, a legitimate exercise of the employer’s management rights.
In view of the foregoing, the CRT disallowed the worker’s complaints.
While the Canadian Human Rights Act, which applies to companies under federal jurisdiction, expressly includes family status among the prohibited grounds of discrimination, the Charter does not.4
Employers under provincial jurisdiction therefore do not have any duty to accommodate parents whose work hours are not compatible with their family obligations. They may, lawfully and without discrimination, refuse to grant special work hours and may, if the employee is unavailable, terminate the employment relationship.
In addition, by reaching the conclusion that it did, the CRT established, in our opinion, though it stated that it was not ruling in this regard, the difference between an employer’s obligation to allow an employee to take up to ten days off per year for family reasons prescribed by the ALS and the employer’s right to require the employee to work, subject, among other things, to this exception, his or her assigned hours.