Human Rights Tribunal Declines To Recognize Employee Right To Refuse Overtime
It is common and sometimes necessary for employers to require their employees to work overtime. On the other hand, employees who have children sometimes find it difficult to balance the competing demands of their employers and their family obligations. In a recent decision of the BC Human Rights Tribunal, Falardeau v. Ferguson Moving and others, 2009 BCHRT 272, the Tribunal dealt with a complaint by a terminated employee who alleged that he was discriminated against based on his family status; Mr. Falardeau was fired for refusing to work an overtime shift in order to care for his son. Mr. Falardeau claimed that he had a right to refuse overtime work because of his child care obligations.
Section 13 of the BC Human Rights Code prohibits a person from refusing to employ or continue to employ, or from otherwise discriminating against a person with regard to their employment on the basis of their family status. This case raised an interesting question: whether or not the Human Rights Code can be invoked to prevent an employer from terminating an employee if they refuse to work overtime due to their childcare responsibilities? In Falardeau the Tribunal held that while discrimination on the basis of family status is prohibited, "a serious interference with a substantial parental or other family duty or obligation" resulting from a change in a term or condition of employment must exist before the employee's right to refuse such change will be protected by the Human Rights Code. In this particular case, the Tribunal held that there had been no such serious interference and dismissed Mr. Falardeau's complaint.
The test for establishing a prima facie case of discrimination, which was applied by the Tribunal in Falardeau, was first formulated by the BC Court of Appeal in Health Sciences Assn. of British Columbia v. Campbell River and North Island Transition Society, 2004 BCCA 260. In Campbell River, the complainant (a mother with four children) worked for her employer as a part-time child and youth support worker. One of her children, age 13, had severe behavioural problems requiring specific parental as well as professional attention. The employer changed the complainant's working hours from an 8:30 a.m. to 3:00 p.m. shift to an 11:30 a.m. to 6:00 p.m. shift. In the first hearing, the arbitrator held that the employer had breached Section 13 of the Human Rights Code and had discriminated against the Complainant based on her family status by not reasonably accommodating her family situation. The decision was appealed by the employer and the BC Court of Appeal held as follows:
"Whether particular conduct does or does not amount to prima facie discrimination on the basis of family status will depend on the circumstances of each case. In the usual case where there is no bad faith on the part of the employer and no governing provision in the applicable collective agreement or employment contract, it seems to me that a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee. I think that in the vast majority of situations in which there is a conflict between a work requirement and a family obligation it would be difficult to make out a prima facie case."
In Campbell River, since the arbitrator had accepted evidence of a doctor that the complainant's son had a major psychiatric disorder and that her attendance to his needs during after-school hours was "an extraordinarily important medical adjunct" to the son's well being, this constituted a substantial parental obligation of the complainant to her son. The decision by the employer to change her hours of work was a serious interference with her ability to discharge that obligation.
The Campbell River analysis was accepted by the Tribunal in Miller v. British Columbia Teachers' Federation, 2009 BCHRT 34, although the facts did not involve a complaint of discrimination in circumstances of a conflict between an employee's work and family obligations. The following paragraph from the decision provides valuable insight into the Tribunal's position on this issue:
"In the employment context, almost every work-related requirement has the potential to interfere, to some degree, with an employee's family obligations. Yet there are obvious societal and economic reasons why employers must be able to require their employees to work, and to do so at certain times and in certain places, regardless of the fact that employees might have conflicting childcare or other family responsibilities. Something more is necessary, in that context, to establish discrimination, and the Court of Appeal defined that something more as "a serious interference with a substantial parental or other family duty or obligation". This is a way of defining, in that context, what is necessary to establish discrimination in the substantive or purposive sense."
Thus, when an employer requires its employees to work overtime or modify their work schedules, it must be prepared to accommodate those employees where the change would result in a serious interference with the employee's family responsibilities. Of course, whether or not a workplace schedule change and resulting effect on the employee's family responsibilities constitutes a serious interference, will depend on the facts of each case. Reviewing the facts in Falardeau provides some guidance on what would and would not meet that test.
Mr. Falardeau, a single father, was employed as a mover with his employer, Ferguson Moving (1990) Ltd. from April 27, 2004 to November 29, 2006, and again from September 10, 2007 to November 29, 2007 when he was fired for refusing to work overtime. During his 2004 – 2006 employment, Mr. Falardeau worked overtime on over 150 occasions and on approximately 15 occasions during his 2007 employment. When he rejoined Ferguson in 2007, Mr. Falardeau knew that the nature of the work included irregular overtime hours involving both individual and multiple jobs.
On October 20, 2004, Mr. Falardeau was granted sole custody of his son, who would have been approximately 7 years old at the time. As Mr. Falardeau did not want to leave his son home alone during the weekdays, he made arrangements for after school daycare. The evidence suggested that Mr. Falardeau's parents lived in a separate suite in the same house and either they, or Mr. Falardeau's girlfriend at the time, were able to pick his son up from school. On days when no one was able to pick his son up from school, he had an arrangement with the daycare to be "on standby" to pick his son up. The daycare also charged Mr. Falardeau $10 per minute to continue caring for his son after 6:00 p.m.
On November 29, 2007, when Mr. Falardeau was asked to work overtime he refused to do so because he said he needed to be at home with his son. Consequently, he was fired by his employer. The Tribunal held that the following factors played an important role in its finding that Mr. Falardeau failed to establish that his employer's demand for overtime work constituted a serious interference with his family responsibilities:
- there was a mutual understanding at the time Mr. Falardeau was re-hired that the nature of the work included irregular and overtime hours;
- Mr. Falardeau had child care available every day if he needed;
- Mr. Falardeau never brought the childcare up as an issue before the November 29, 2007 incident;
- the employer sought to maintain a well established pattern of overtime hours to meet customer needs, and from what the employer knew about Mr. Falardeau's childcare needs and arrangements, the employer believed Mr. Falardeau had coverage available for his son's care if required to work overtime;
- there was a history of the employee having worked when his child care needs and arrangements were the same as they were when he refused to work overtime and was fired;
- there was no evidence that Mr. Falardeau's son had special needs or required care from Mr. Falardeau in particular.
All in all, the Tribunal found nothing in the facts of this case that was outside of the "ordinary obligations of parents who must juggle the demands of their employment and the provision of appropriate care to their children." The Falardeau decision is consistent with previous BC decisions in this context.
Interestingly, both the Canadian Human Rights Tribunal and the Federal Court have criticized the analysis established by Campbell River and that is being followed in British Columbia for being too narrow and placing too high a burden on a complainant alleging discrimination based on family status.
For example, in Hoyt v. Canadian National Railway, 2006 CHRT 33, the complainant had the responsibility to take care of a young daughter and was pregnant with another child. The complainant's doctor recommended some modification to her job because she was experiencing discomfort but her employer failed to accommodate her to the extent required by her family status and could not establish that the failure to accommodate was justified based on a bona fide occupational requirement. The Canadian Human Rights Tribunal did not agree with the approach suggested by the BC Court of Appeal, holding that, the "Human rights codes, because of their status as 'fundamental law', must be interpreted liberally so that they may better fulfill their objectives."
Similarly, in Johnston v. Canada (Attorney General), 2007 FC 36, the complainant filed a complaint with the Canadian Human Rights Commission for discrimination based on her family status when her employer failed to accommodate her request for changes in her shifts. The complainant had been experiencing difficulty in finding a childcare provider with matching availability because she and her husband worked on different shift schedules. The Human Rights Commission rejected her complaint so an application for judicial review was made to the Federal Court. The Federal Court held that BC approach, "that prima facie discrimination will only arise where the employer changes the conditions of employment … unworkable and, with respect, wrong in law".
It is interesting that, despite the criticism that has been voiced by the Federal Court and the Canadian Human Rights Tribunal, the stricter test continues to be applied in BC. However, employers facing issues with conflicting and competing work and childcare demands should seek legal advice before taking any action that may result in a Human Rights complaint.
H1N1 Virus (Swine Flu) Update
Despite initial hopes that the spread of the H1N1 strain of flu would not live up to the 'pandemic' label given it by the World Heath Organization, more than 100 people in an aboriginal community north of Tofino, BC have reportedly fallen ill with swine flu, in what's being described as the first pandemic outbreak in Canada's fall flu season.1 These new statistics and the continued persistence of the virus again raise the issue about what employers can do to protect their employees from the virus and also deal with potential increased absenteeism. (Also see our May 2009 article, Coping With Swine Flu and Other Pandemics.)
Media recently reported warnings from legal experts in England concerning the potential for law suits against employers who are not prepared to deal with their staff and any legal issues that arise from affected people. According to one partner at an employment law firm in the U.K., "I can absolutely see claims in personal injury being brought by employees who say they contracted swine flu at work."2 Section 10 of the Workers Compensation Act (and similar legislation in other provinces) however protects employers from this type of liability. Section 10 protects employers from liability for claims made by their employees and their families arising from personal injuries and illnesses which arise during the course of their employment, even if the employer was found to be negligent.
There are however other potential 'employer related' legal obligations and costs, and the Province of British Columbia has published 10 Steps Businesses can take to Prepare for a Pandemic3 which contains a list of helpful precautions employers may want to take:
- Check that existing contingency plans are applicable to a pandemic, and that core business activities can be sustained over several weeks in the event of high employee absenteeism.
- Plan accordingly for interruptions of essential governmental services like sanitation, water, power, and disruptions to the food supply.
- Identify your organization's essential functions and the individuals who perform them. Build in the training redundancy [i.e. cross-training] necessary to ensure that work can be done in the event of an absentee rate of 25-30 percent.
- Maintain a healthy work environment by ensuring adequate air circulation and posting tips on how to stop the spread of germs at work.
- Promote hand washing, and coughing and sneezing etiquette. Ensure wide and easy availability of alcohol-based hand sanitizer products.
- Determine which outside activities, such as transportation systems, are critical to maintaining operations and develop alternatives in case they cannot function normally.
- Establish or expand policies and tools that enable employees to work from home with appropriate security and network access to applications.
- Expand online and self-service options for customers and business partners.
- Tell employees about pandemic influenza and the steps the organization is taking to prepare for it.
- Encourage employees to stay home if they are sick to stop the spread of illness, and update sick leave, and family and medical leave policies. Concern about lost wages is the largest deterrent to self-quarantine.
Section 13 of the Human Rights Code, prohibits a person from discriminating against a person regarding employment or any term or condition of employment because of "… sex, family status, or physical or mental disability …." Individuals most vulnerable to the virus, such as pregnant women and those with disabilities or underlying medical conditions may require additional protections in the work place, including time off to both minimize risk of infection at work, and recovery periods once ill.4 Section 52 of the Employment Standards Act requires an employer to provide up to 5 days off (without pay) of family responsibility leave, to enable employees to care for the health of a member of the employee's immediate family. Section 52.1 of that Act , provides a right to employees of up to 8 weeks of unpaid leave to provide care to a family member who has a serious medical condition with a significant risk of death within 26 weeks (as certified by a medical practitioner).
Further, employers should consider #10 of the above noted list: employee concerns about lost wages can be a deterrent to the effectiveness of employers' plans and instructions designed to minimize the impact of this virus on its business (i.e. instructions to stay at home for the time necessary to ensure that they do not pass on the illness) . For those employers who do not have any form of paid sick leave, consideration should be given as to whether the cost to the business in terms of increased time lost due to spread of the illness, justifies the cost to pay for some or all of the time lost due to the H1N1 virus.
- See: September 17, 2009, "Swine flu pandemic hits Vancouver Island Aboriginal communities", Vancouver Sun: http://www.vancouversun.com/health/Swine+pandemic+hits+Vancouver+Island+Aboriginal+communities/2004024/story.html
- http://www.guardian.co.uk/world/2009/jul/27/swine-flu-legal-claims-business/print
- http://www.gov.bc.ca/h1n1/attachments/fs_10_steps_for_businesses_to_prepare_for_a_pandemic_aug09.pdf
- http://www.phac-aspc.gc.ca/fluwatch/08-09/w33_09/index-eng.php
Highlight On The Olympics
This is the first of a series of legal and human resources articles we will publish between now and the commencement of the 2010 Vancouver Olympics.
LOANING YOUR EMPLOYEES TO VANOC
The 2010 Vancouver Olympic and Paralympic Winter Games Committee ("VANOC") recently launched an "employee loan program", which, according to the news release, offers "businesses and governments the opportunity to give their employees a once-in-a-lifetime professional experience through working temporarily for the Games."1 VANOC has expressed that it has approximately 1,500 jobs to fill in 32 different departments in order to cope with the additional workforce demand. The program was described by Dave Cobb, Deputy Chief Executive Officer and Executive Vice President of VANOC, as a "win-win situation for everyone" and the news release states that loaned employees will have the opportunity to "broaden their skill set, while getting all the benefits of being a Games-time worker such as an official uniform and a lifetime of memories, secure in the knowledge that their regular job will be there to return to when the Games draw to a close on March 2010." Some of the available positions that have been identified include: Delivery Driver, Performer Service Coordinator, Energy Deputy Manager, Sport Writer, Transportation Manager and Venue Communications Centre Manger.2
So what does this mean for employers wishing to participate in the program by "loaning" or "seconding" their employees to VANOC for the Winter Games? Although complete details about the secondment opportunity have not been released by VANOC, there are a few legal issues employers should bear in mind when considering whether or not they wish to provide their employees an opportunity to work for VANOC during the games, whether on a loan or volunteer basis.
Constructive dismissal occurs when an employer makes a unilateral change to a fundamental term of the employment contract. Where an employee is found to have been constructively dismissed, the employee is entitled to treat the employment contract as having been terminated and the employee has all the same rights under the law as an employee who has been terminated without cause. With this in mind, here are a few things to consider:
- The decision to participate in the "employee loan program" and to second employees to VANOC during the Olympics should be a mutual decision of the employer and employee and should be documented by a written agreement.
- Employers should be careful that a seconded employee's regular wages are not reduced during the secondment period without the employee's consent and the employee's benefits should continue during the secondment period.
- Employers should ensure that there is no gap in a seconded employee's Workers' Compensation coverage during the secondment period: if such coverage is not provided by VANOC, then the employer should continue coverage.
- During the secondment period, employers must ensure that they do not unreasonably expect and unilaterally impose a requirement on their remaining employees to put in overtime to make up for the absence of the seconded employees.
- Hours of work for seconded employees with VANOC may be different or longer than the employees' normal work schedule. Ensure there is a clear understanding between all parties as to how requests for extra work time is to be managed and paid for.
The foregoing list, while not exhaustive, is meant to raise some legal issues for employers to consider if they are thinking about participating in the "employee loan program". However, the issues raised above apply not only in the context of VANOC's program, but in all secondment scenarios.
Comments & Feedback
If you have comments on the content of these articles please email the authors Pratibha Sharma at pzs@cwilson.com and Kristine All at kpa@cwilson.com.