Several complaints recently came before the Commission des relations du travail (CRT). The complaints were filed by an employee in connection with disciplinary action to which he was subjected for having refused, on four occasions, to work overtime. In its decision,1 the CRT issued a reminder that employees have a duty to fulfill their parental obligations differently when their employer requires them to work overtime.
The complainant had been a correctional officer at the Roberval detention facility since 1996. On October 10, 2008, he received a first disciplinary notice, namely a one-day suspension without wages, following his refusal to remain at his station at the end of his work shift, notwithstanding a formal order from his supervisor and in spite of the opportunity he had been afforded to take time to make necessary arrangements in connection with his parenting responsibilities. The notice stated that such behaviour was all the more blameworthy as the employer had already requested in writing that the employee take all necessary steps to fulfill his work-related duties; the notice also stated that the disciplinary action took into account the fact that a reprimand had been placed at the beginning of the year on the employee’s disciplinary record, and it concluded by stating that, in the event of a recurrence, the employee left himself open to harsher penalties, up to and including dismissal.
Five days later, the employee received another request to work overtime, but, once again, he left the premises after his work shift. He received a two-day suspension. Although they claimed to be aware of the problems that working overtime could cause for an employee as regards the discharge of his parental duties, the authorities explained that continuity of operations and security in a correctional facility required manda-tory overtime. “It is thus your responsibility to take all reasonable steps to ensure that your obligations are assumed by someone other than yourself when your services are required by your manager,” the notice stated. In December 2008, following another refusal to work overtime, the employee was again suspended, this time for three days without wages, and, on January 29, 2009, he was suspended for five days for having again refused to comply with a similar request.
The employee filed complaints pursuant to paragraph 6 of section 122 of An Act respecting labour standards,2 (the “Act”) which prohibits an employer from suspending, or imposing any other sanction upon an employee on the ground that such employee “has refused to work beyond his regular hours of work because his presence was required to fulfill obligations relating to the care, health or education of the employee’s child (…), even though he had taken the reasonable steps within his power to assume those obligations otherwise”.
Had the employee taken the reasonable steps within his power to assume his family obligations otherwise? The complainant explained that he had had custody of his two children, who were 9 and 11 years old, every second week since 2003, and that he did not know any babysitter among his acquaintances who could pick his children up at the school daycare service and bring them home. According to the evidence, the employee’s residence, his workplace and his children’s daycare were located in three different municipalities. By way of accommodation, the employer had offered the employee time to pick his children up at school and bring them home, but the complainant considered the offer pointless seeing as how he did not know any babysitters. The employee was from the Eastern Townships but had no relatives residing locally and he, therefore, considered that he was entitled to refuse to work overtime, notwithstanding the needs of the service.
The CRT recalled that, in order to legitimately refuse to work beyond his regular hours of work when his presence was required in the workplace, and thus avail himself of the presumption established in his favour in the Act, the employee must have taken “reasonable steps to assume his parental obligations otherwise”. Even though his was an obligation of means (i.e. he was subject to a general duty of care) rather than one of result (i.e. an absolute duty), it was nevertheless incumbent upon the employee to prove that he had taken reasonable steps at his disposal, in light of the circumstances. He could not refuse outright to work beyond his regular work hours, hiding behind his parental responsibility, without attempting to find a solution. On May 1, 2003, paragraph 6 of section 122 of the Act was amended. Whereas the former version created a duty for the employee to take “all” reasonable steps within his power to assume his parental obligations otherwise, the new wording removed the word “all”. The burden of demonstrating that “all” steps had been taken could be considered excessive in light of the societal goal sought to be achieved, namely reconciling professional and parental obligations.
Notwithstanding this amendment, the CRT was of the view that the employee had not met his burden of showing that he had taken any steps to fulfill his obligations otherwise, having even refused the accommodation offered by his employer in this respect. He could not, therefore, avail himself of the protection afforded by law.