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What should an employee do if their childcare needs conflict with their work schedule? Employees with childcare obligations have a right to be accommodated in the workplace, but employees need to be aware of the limitations on that right and their role in the accommodation process. A recent Ontario Court case Peternel v Custom Granite highlights the importance of communicating with your employer and cooperating in the accommodation process. It is also a reminder that employees do not have the right to choose their accommodation. What Peternel doesn’t do is respond to the requirement to self-accommodate set out by the Federal Court of Appeal in Johnstone and subsequently challenged in cases like Misetich v Value Village Stores Inc.

Childcare Needs Prompt Mother to Ask for New Schedule

Tina Peternel, the Plaintiff, worked for Custom Granite & Marble for approximately three and a half years before taking a pregnancy and parental leave (aka maternity leave) with her third child. The Plaintiff was a scheduler and the morning hours were vital to the position; her work day began at 8:30am but she was occasionally required to take phone calls or attend meetings before 8:30am.

Before the Plaintiff went on maternity leave, her mother lived with her and was able to provide early morning childcare when she had to work early. Peternel’s mother was no longer living with her by the end of her maternity leave.

The Plaintiff told her Employer that she would not be able to arrive at work earlier than 10am and would no longer be able to attend meetings or answer phone calls in the early morning because of her childcare needs.

The Employer insisted that the Plaintiff start work at 8:30, as she had before her maternity leave. In response, the Plaintiff argued that the Employer had discriminated against her on the basis of family status by failing to accommodate her childcare needs.

Ultimately, the Judge rejected the discrimination claim, in large part because of her lack of communication and cooperation with the accommodation process and because she did not take reasonable steps to meet her childcare obligations or show that the 8:30am start time would have had a negative impact on a family need.

Communication and cooperation

Employees are required to “co-operate with the employer in the accommodation process by providing the employer with information concerning the family-related needs and working with the employer to identify possible solutions.”

Unfortunately for the Plaintiff, the Judge found that she had not provided the necessary information to help her Employer accommodate her childcare needs and had failed to cooperate with her employer in finding a solution. The Judge wrote:

she did not tell Custom that she had not paid for daycare and that without a firm January start date, she would lose all her daycare; she did not tell Custom how difficult it had been for her to find daycare for her then 13-month old infant; the plaintiff did not tell Custom that she had secured temporary before school care through a neighbour, which would bridge the gap until a before school daycare spot opened up at her children’s school; or that (as she alleged at trial) unless she were permitted to start her workday at 10:00 a.m., even on a short-term basis, the plaintiff would forfeit her daycare spots and would be unable to return to Custom on any terms.

The Judge held that the Plaintiff’s lack of communication about her childcare needs “frustrated any efforts that might have been made by Custom to accommodate those needs.”

In addition to the Plaintiff’s omission of pertinent information that would have helped Custom to accommodate her childcare needs, when Custom offered her a different position with a 10am start time, at a similar salary and within her skill set, she did not respond at all. She told the Court that she thought Custom should have known she could not accept a position that would require her to work until 7pm.

The Judge held that Custom’s decision to have the scheduler begin work at 8:30am “was bona fide and was not intended as a way to put roadblocks in the way of the plaintiff’s return to work.” The Employer required the Plaintiff to arrive at work according to the original terms of her employment, and the Plaintiff was attempting to change the terms of employment unilaterally. Employees don’t have a right to dictate the childcare accommodation they will receive, or to demand a perfect solution.

Discrepancy between the tests

While Peternel identifies earlier childcare needs discrimination cases (Misetich and Johnstone) as creating two competing tests for establishing discrimination on the basis of family status, it does not resolve the tension.

The Johnstone test requires a plaintiff to establish that:

(i) the child is under her care and supervision;

(ii) that the childcare obligation at issue engages her legal responsibility for that child, as opposed to a personal choice;

(iii) that she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and

(iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

In Misetich, the Human Rights Tribunal rejected Johnstone because it requires plaintiffs to show that they could not “self-accommodate” the adverse impact, which creates a higher standard for claims of discrimination based on family status than claims based on other grounds.

The Tribunal, in Misetich, relies on the Moore test where plaintiffs “are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Misetich then expands on what an adverse impact looks like in the context of claim of discrimination based on family status, providing that:

the employee will have to do more than simply establish a negative impact on a family need. The negative impact must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work. For example, a workplace rule may be discriminatory if it puts the employee in the position of having to choose between working and caregiving or if it negatively impacts the parent/child relationship and the responsibilities that flow from that relationship in a significant way.

Instead of choosing one test or the other, the Judge simply held that the Plaintiff would have lost her case regardless of the test.

The Plaintiff failed to meet the third factor of the Johnstone test. She claimed that she could not secure daycare without a firm return to work date because she was not willing to pay for daycare if it was not necessary. But the judge thought that she could have secured daycare in advance of finalizing her return to work details.

While the Employer also argued that the Plaintiff failed to satisfy the second Johnstone factor because her requested start time reflected personal choice, nor childcare needs, the Court did not address this issue.

With respect to the Misetich test, the Plaintiff did not claim that placing her children in daycare before school “would have a negative impact on a family need nor that any alleged negative impact would result in a ‘real disadvantage to the parent/child relationship’ or put her in a position of having to choose between ‘working and caregiving’ if she had to find before school care for her two older children”. Because of this, she didn’t pass the Misetich test, either.

QUESTIONS REMAIN ABOUT CHILDCARE NEEDS AND THE LAW

This case doesn’t resolve employment lawyers questions about the correct legal test for determining if an employer has met their duty to accommodate childcare needs. IT is still unclear whether claimant’s have a responsibility to show that they could not “self-accommodate”, a requirement of the Johnstone test set out by the Federal Court of Appeal.

While a recent decision of the Human Rights Tribunal once again cited Misetich as the test for discrimination on the basis of family status, until such time as this issue is resolved by a higher courts, employees and their lawyers may wish to exercise caution.

As always, employees need to be aware that it is imperative that they communicate the full extent of their childcare needs and do not stop their participation in the accommodation process at the point of identifying their ideal accommodation.

While the issue of a chosen accommodation is not central to Peternel, it is certainly in the background. The Plaintiff identified the sole accommodation that would be acceptable to her and failed to respond to her Employer’s offer of another position.

Employees who are unsure if their employer has a right to certain information or who are facing difficulties finding a balance between the demands of their job and their childcare needs should contact an employment lawyer to find out more about their rights and options.


RESOURCES

Peternel v. Custom Granite & Marble Ltd., 2018 ONSC 3508 CanLII

Canada (Attorney General) v. Johnstone, 2014 FCA 110 CanLII

Misetich v. Value Village Stores Inc., 2016 HRTO 1221 CanLII

Moore v. British Columbia (Education), [2012] 3 SCR 360, 2012 SCC 61 CanLII

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