By Malcolm MacKillop and Todd Weisberg
Childcare case not
revolutionary
Case demonstrates there is no 'hierarchy
of rights' under human rights legislation.
I
n Johnstone v. Canada (Attorney
General), the Federal Court confirmed that the duty to accommodate extends to facilitating childcare arrangements for employees.
The decision raised the eyebrows of many
employers. Fortunately, the court's
decision is not as revolutionary as it has
been portrayed, and a close reading of the
decision reveals that this duty to accom-
modate will likely only arise in a very limited set of circumstances.
Fiona Ann Johnstone was employed as
an officer for the Canadian Border Services Agency. As a full time employee, Johnstone worked rotating shifts that varied
between days, evenings, and nights. Johnstone requested to be placed on a fixed
full-time schedule after the birth of her
first child, and again after the birth of her
second child, in order to facilitate childcare arrangements. The CBSA denied
both requests on the basis of an unwritten policy that allowed fixed schedules
only for part-time employees.
Johnstone filed a human rights complaint with the Canadian Human Rights
Tribunal claiming discrimination on
the ground of family status. The tribunal found for Johnstone, and the Federal
Court upheld the tribunal's decision.
The Federal Court held that the test for
a prima facie case of discrimination based
on family status is whether the employer's
rule interferes with an employee's ability to
fulfil her substantial parental obligations
in "any realistic way." This is not an easy
test to meet. From a practical standpoint,
the test requires an employee to show she
has exhausted all reasonable childcare
options but remains unable to reconcile
family obligations with work obligations.
This could include seeking a live-in nanny
if one could be afforded, as well as using
relatives for childcare arrangements.
CLB
Atlantic
1/2 island
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ju n e 2013
INHOUSE
