Caregiver’s Rights to Flexibility Succeed Second Challenge

By Alfred Kempf
Categories: Blog, Employment Law

On February 17th, last year I wrote about a case (Johnstone v. Canada (A.G.)) in which a mother was awarded substantial damages because her employer did not accommodate her requests for flexible hours she said she required to care for her children.  My article can be found at:  www.pushormitchell.com/law-library/article/new-developments-employee-leave-family-obligations

I considered the case to be stretching the protection intended to be afforded to caregivers under human rights legislation.  

The case and a sister case were appealed to Federal Court and then the Federal Court of Appeal and upheld.  The Federal Court of Appeal decisions were released recently.  

The Johnstone appeal decision can be found at:  decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/71341/index.do

The sister case (Seeley v. CNR) involved a female conductor who lived near Jasper, Alberta.  Conductors are required to work throughout western Canada as need arises.  Ms. Seeley had two young children and was recalled from layoff to work in Vancouver.  She protested the assignment on the basis that since her husband also worked for CNR her child care arrangements required her to work closer to home.  CNR responded by forfeiting her seniority rights which effectively amounted to a termination of her employment.  She filed a human rights complaint based on family status.  

The courts have stated that CNR did not go far enough in its attempts to fairly consider the requests for accommodation.  It is not enough for an employer to complain that accommodation would in effect give super seniority to parents.

The Seeley appeal decision can be found at:  decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/71339/index.do

I would not be surprised to see the cases appealed to the Supreme Court of Canada.

Stay tuned.  

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