Canada: a father’s complaint for discrimination on the ground of family status disallowed

On January 10, 2017, in Guilbault v Treasury Board (Department of National Defence), the Public Service Labour Relations and Employment Board (Board) rejected the grievance of a claims officer (Employee) of the Department of National Defence (Employer) who alleged he was the victim of discrimination based on his family status, in violation of the Canadian Human Rights Act (CHRA) and the collective agreement binding the Employer and the Canadian Association of Professional Employees (Union).

Summary of the facts

In January 2013, the Employee requested accommodation from the Employer under the CHRA to allow him to take his two 15-minute breaks at the end of his day and thereby leave work 30 minutes early. To justify his request, he cited his spouse’s health problems and the language and development problems of two of his children. By leaving work a half-hour early in the afternoon, he could help his spouse with family tasks.

The Employer refused to grant his request, citing workplace health and safety reasons. The Employer did, nonetheless, meet with the Employee to offer him alternative solutions including, among other things, a compressed workweek, a variable schedule and part-time employment. However, the Employee rejected all those options.

As a result, the Union filed a grievance on March 20, 2013 alleging the Employer’s refusal to accommodate the Employee was discriminatory and seeking the desired accommodation as well as financial compensation for undue stress. In September 2014, despite the grievance being filed, the Employer offered the Employee the option of taking his half-hour lunch at the end of the day so he could leave early and combining the two paid 15-minute breaks to create a half-hour lunch. The Employee accepted that offer and withdrew the “accommodation” part of the grievance.

The Board’s decision

To determine whether the Employee had been discriminated against, the Board followed the Federal Court of Appeal’s reasoning in Johnstone and concluded the situation at issue was related more to the medical condition of the Employee’s spouse than to childcare. The Employer’s refusal to modify his work schedule therefore did not hinder the Employee in fulfilling his legal responsibility towards his children. In addition, the Employee had not sought outside help (a babysitter or specialized assistance for his children with special needs) before requesting accommodation from the Employer.

The Board explained that, while the Employee’s needs were very real and “far removed from such things as ballet or judo classes,” the Employer could not be held legally responsible for the functioning of the family. As a result, the Employer’s initial refusal to modify the Employee’s work schedule did not constitute prime facie discrimination.

Conclusion

This Board decision serves as a reminder that it is up to employees to balance their workplace responsibilities and their family life, and that they must look for solutions, in their personal lives, before asking the employer for a change to their working conditions.