Is an employer required to accommodate the work schedule of a father who has sole custody of his young child every other week? That was the very current and thorny question confronting Carol Girard, Q.C. as arbitrator in the case of Syndicat des travailleurs de Environnement Godin – CSN (Sébastien Patoine) et Environnement Godin Inc.1
The facts behind the decision are straightforward. The employer carries on an industrial cleaning business from two locations in Quebec. At the Alma location, the employer handles the requirements of a major multinational client on a demanding and frequently urgent basis during day, evening and night shifts. The employees with the least seniority are required to respond first during the evening and night shifts. Often, the employer calls his staff with only a few hours’ notice before the beginning of their shift; sometimes the notice is only one hour.
The grievor was in a joint custody arrangement, which involved having custody of his young child on alternating weeks. Due to his lack of seniority (two years) he was often called upon to work evenings and nights. His work/life balance was satisfactory until his move to another town and the loss of his babysitter, after which he refused calls to work on a number of occasions by reason of his parental obligations.
The employer did not accept the employee’s reason for refusing work, and over a period of about three months issued a verbal warning, a written reprimand, a three-day suspension and a two-week suspension. Ultimately, the grievor was dismissed.
Basing its case on the Charter of human rights and freedoms,2 the union argued that the employer had a duty to accommodate the complainant by allowing him to work days during the weeks in which he had custody of his child. In addition, the union stated that such a request should not be considered excessive as the employer could easily call upon the next employee on the seniority list. In any event, the employer had failed to establish that the employee’s absence prevented the company from operating.
However, and unlike a number of other provinces, Quebec’s Charter of human rights and freedoms3 does not include “family status” as a class protected from discrimination (s.10 of the Charter). The provinces of Ontario, British Columbia and Alberta, for example, all list “family status” as a prohibited ground of discrimination. The Canadian Human Rights Act4 also contains “family status” protection.
In light of this reality the arbitrator decided that “in the present state of the law and in the absence of any agreement, the notion of work/life balance does not extend to working every other week in a position which requires availability for work on call and especially for evening and night work …”
Therefore since family status, in this case joint custody, is not an area of prohibited discrimination, the arbitrator concluded that the employer did not have a duty to accommodate.
Nonetheless, and importantly, the arbitrator maintained the grievance in part, set aside the dismissal and substituted a six-month suspension, declaring that it seemed fair and reasonable to give the employee one last chance.
After analyzing this decision, we are tempted to conclude that even if an employer in Quebec is not required to adjust hours of work to accommodate an employee’s unique family obligations such as joint custody, it should perhaps show greater than normal patience before discharging an employee whose absenteeism is directly attributable to his family obligations. In jurisdictions which provide the “family status” protection the law remains unclear with respect to how far an employer must go to accommodate an employee’s individual and unique family obligations and responsibilities.