Sample Accommodation E-Lert
This sample Accommodation E-Lert was posted on October 6, 2022 within the category "Accommodating family status". A one-year subscription to Accommodation E-Lert provides instant access to the latest cases on the duty to accommodate in Canada and their impact on the unionized workplace.
A Canadian border services officer requested an accommodation to his shift schedule in order to help care for his fourth child. This was rejected while his wife was on maternity leave. Subsequently, an accommodation arrangement with his employer was made when she returned to work, but this required that he first attempt to trade shifts with other employees. He filed a grievance, alleging that he had not been accommodated before the shift-trade arrangement, and that this new arrangement was too onerous. The labour arbitrator ruled that no prima facie discrimination had occurred since the employee’s childcare obligations were met while his wife was on maternity leave and the requirement that he trade shifts was not sufficiently burdensome.
Gueye v Treasury Board (Canada Border Services Agency), 2022 FPSLREB 41 (May 25, 2022) (Member, Marie-Claire Perrault)
Mr. Oumar Gueye served as an officer with the Canada Border Services Agency at the Trudeau Airport in Montreal.
He worked a rotating schedule while his wife worked evening shifts as a nurse.
In July 2011, he submitted an accommodation request in advance of the birth of his fourth child, seeking to work fixed-day shifts.
His request was denied in September 2011, with the employer stating that, as long as his wife was on maternity leave and he was soon to start on a paternity leave, no accommodation was required.
In November 2011 Mr. Gueye filed a grievance in response to the refusal.
Mr. Gueye stated that: his wife’s schedule was fixed; she was hoping to pursue graduate studies in nursing; they had no family in the city; and, despite their best efforts, they were unable to find someone to provide childcare.
He did not yet want to use his paternity leave, preferring to postpone it until the summer and, while he was able to trade shifts to secure days, this was a difficult challenge since it sometimes required him to work ten days in a row.
While the parties agreed to most of the facts, they disagreed on some details. A noteworthy disagreement involved the employer alleging that Mr. Gueye did not want to hire a babysitter, while Mr. Gueye said that he could not secure a babysitter. It is not disputed that he had made efforts to secure a babysitter.
In June 2012, as his wife’s return to work approached, Mr. Gueye again requested a fixed day-shift accommodation.
The parties entered into an accommodation agreement in October 2012 which required him to trade shifts in order to secure days at the beginning of every eight-week schedule and that, when unsuccessful, the employer would grant day shifts.
Mr. Gueye testified that he found this arrangement stressful and that it produced long periods of work without rest days. He asserted that he was not accommodated during the period from July 2011 to October 2012 and that he was not fully satisfied with the subsequent accommodation arrangement.
Federal Public Sector Labour Relations and Employment Board Member, Marie-Claire Perrault, began her analysis by stating that employees’ accommodation need not be perfect, but the accommodation must be both sufficient and necessary.
This became a thread running through the decision and the grievance was denied since no prima facie discrimination on the basis of family status was found.
While Mr. Gueye had some difficulties implementing the accommodation agreement, Board Member, Perrault, noted that, in the end, he always managed to secure day shifts.
Turning to the case law, Board Member Perrault first reviewed the test for prima facie discrimination concerning family status grounds.
The leading decision in the federal jurisdiction is Johnstone v Canada (Border Services Agency)¹ which requires the employee seeking the accommodate to satisfy the following four steps:
- That a child is under his or her care and supervision;
- That the childcare obligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice;
- That s/he has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
- That the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
Board Member Perrault found that the first three factors were met in this case, as the children were under his care, he had a legal responsibility given their age, and that he made reasonable efforts to find someone to babysit. While he had a number of requirements for a babysitter, these were not found to be unreasonable.
The fourth factor – whether the workplace rule interfered in a manner that is more than trivial or insubstantial – was not met. Before the accommodation agreement had been reached, his wife was on maternity leave, so there was no interference with child care, and, following the agreement, he was always able to secure day shifts.
Mr. Gueye pointed to the more recent ruling by the Alberta Court of Appeal in United Nurses of Alberta v. Alberta Health Services² which rejected the reasonable-efforts factor in Johnstone and favoured the broader human rights test from Moore³.
In Moore: to establish prima facie discrimination, it was required only that:
- The employee had a protected characteristic;
- S/he suffered an employment-related adverse impact; and
- The protected characteristic was a factor in the adverse impact.
Board Member Perrault stated that, given that Johnstone was still the prevailing family status test in the federal jurisdiction, she could not depart from the Federal Court of Appeal’s jurisprudence. Regardless of the test applied, however, she found that Mr. Gueye had not established a case of prima facie discrimination.
Next, she reviewed the three-step test from Moore, and found no employment-related adversity:
 The second factor does not apply to the grievor. He preferred a fixed day schedule, which he was denied. I agree that it is inconvenient to have to negotiate with one's colleagues for day shifts, but I cannot see how that is really an adverse impact. Clearly, the grievor had to organize his schedule for day shifts, but the employer never hindered such an approach. On the contrary, it was encouraged. The grievor always managed to make arrangements and was never deprived of salary or benefits (unlike Ms. Johnstone's situation). [Emphasis added]
Board Member Perrault responded to Mr. Gueye’s concern that he was finding it difficult to reconcile work and family responsibilities, and that his wife had to delay her education plans:
 With all due respect, those facts are part of the reality of being a parent, and for his spouse, of the choice of adding graduate-school studies to her work obligations. The employer allowed the grievor to organize his schedule to work only day shifts and recognized its duty to propose an accommodation. I cannot find that discrimination occurred because the employer did not grant the grievor his preferred accommodation; i.e., a fixed day schedule. To meet the service’s needs, most border services officers work on a rotation. Given that reality, the employer still made it possible for the grievor to make arrangements to work days, which he did.
Accordingly, she found that neither the Moore test for prima facie discrimination nor the Johnstone criteria for family status accommodation had been met. The grievance was denied.
Implications for Employers
There is still uncertainty regarding which test adjudicators will apply for establishing prima facie discrimination on the basis of family status grounds. Alberta, British Columbia, Ontario and the federal jurisdiction all apply different tests. Where an employee has a spouse on maternity leave and childcare obligations are being met, and where an accommodation plan allows the employee to independently switch shifts, notwithstanding some inconvenience, that may satisfy the accommodation duty.
Implications for Unions
Unions must keep in mind that , notwithstanding the current confusion regarding which test to apply for a finding of prima facie discrimination concerning family status, the employee seeking the accommodation must have legitimate childcare or family care obligations and the employee must be facing a significant barrier in attempting to meet those obligation. The burden of seeking shift-swaps alone will likely not be enough. The workplace requirement must be more than trivial or insubstantial, sufficient to establish a legitimate adverse impact. Unions must be familiar with the particular family status test operating in their jurisdiction.
¹ 2013 FC 113 [Johnstone].
² 2021 ABCA 194.
³ Moore v British Columbia (Education), 2012 SCC 61.