Trevor R. Thomas
The ongoing tension of balancing work and parental duties is familiar to many of us (myself included!). The concept of “balance” can often seem elusive; feelings of failure in one area or the other is common. For parents facing changes in the workplace – particularly around their work schedules, the balance can be thrown far off center. Is there any legal recourse?
The British Columbia Human Rights Code provides protections for individuals in the area of employment on the basis of family status. There have been some significant decisions from the Human Rights Tribunal and our British Columbia Court of Appeal that address the balance of parental duties and workplace requirements.
Decisions from the Tribunal include those brought by parents facing a change in schedule at work. The general nature of the complaint is: “The employer is unilaterally changing my work schedule which impacts my parenting duties.” As a result, these parents allege a breach of the Human Rights Code on the basis of family status.
Over a number of decisions, the Tribunal has reinforced the following 2-part legal test: to be successful a complainant must establish a change in a term or condition of employment and a substantial interference with a parental or family duty or obligation.
Here are some examples of how the Tribunal has dealt with parental (family status) complaints based on the 2-part test:
1. In Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260, the complainant was able to meet the test because her son had a major psychiatric disorder and the change to her hours seriously interfered with her substantial parental obligation of attending to his needs during after-school hours.
2. In Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46, the complainant did not meet the second part of the 2-part test (i.e., substantial interference). The Court of Appeal held that the complainant’s individual situation was no different from the majority of parents and there was no evidence to suggest his child would not be well cared for if he was away from home for several months.
3. In Ziegler v. Pacific Blue Cross (No. 2), 2020 BCHRT 125, the Tribunal was able to find that there was a change to Ms. Ziegler’s terms and conditions of employment. However, Ms. Ziegler’s complaint was not successful because, based on the evidence presented, the Tribunal found she had not made sufficient efforts to find out if she could arrange alternative childcare that would allow her to work her altered shifts.
4. In Harvey v. Gibraltar Mines Ltd. (No. 2), 2020 BCHRT 193, the Tribunal refused to dismiss a complaint because, while the complainant did not allege that her child had any special needs or that she was uniquely qualified to care for him, the Tribunal took into consideration that both parents worked the same 12-hour shift for the same employer, and the complainant had made all possible efforts to find adequate child care. The employer successfully challenged the Tribunal’s decision to the BC Supreme Court (read here) because the Tribunal failed to take into consideration the 2-step test required for this type of complaint. Rather, the Tribunal had only focused on the second aspect of the test. As a result, the decision was set aside and the Court reaffirmed the current state of the law to require that a complainant must establish both steps in order to be successful.
These decisions make it clear that simply not being able to find childcare is not sufficient to succeed in a human rights complaint based on family status.
We regularly deal with employees and employers facing similar issues in the workplace. If you have any question, reach out to us!