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Federal Court quashes HR Commission decision to drop parental shift work accommodation complaint

Fiona Johnstone, a customs inspector employed by the Canada Border Security Agency at Toronto’s Pearson International Airport, took maternity leave in 2003. When she returned to work, she faced the daunting challenge of finding child care in circumstances where both she and her spouse, a fellow customs officer, were required to be available for 24-hour-per-day rotating shifts. Johnstone asked her employer to accommodate her with three fixed 12-hour shifts per week so she could obtain child care for the time she spent at work.

The employer refused, citing its accommodation policy that restricted fixed shifts to 34 hours per week. The employer offered her fixed shifts over four days per week to a maximum of 34 hours. Eventually Johnstone settled on three 10-hour shifts per week because she determined it would not be cost-effective to come to work for one four-hour shift.

Dissatisfied that she had been forced to accept part-time employment in return for securing the fixed shifts, Johnstone complained to the Canadian Human Rights Commission. The Investigator appointed to look into her complaint recommended that the Commission proceed with Johnstone’s complaint.

DESPITE INVESTIGATOR’S REPORT, COMMISSION DROPS COMPLAINT

The Investigator’s findings in support of her recommendation that the Commission proceed with the complaint included:

• Johnstone appeared to have no choice but to request and accept the employer’s offer of part-time employment in return for obtaining fixed shifts;
• the employer’s policy appeared to differentiate between classes of employees who require accommodation;
• the policy for family status accommodation may have an adverse impact on female employees because such requests are more often made by women than by men;
• the policy on fixed shifts appears to have indirectly discriminated against Johnstone because she had been “forced” to work part-time to accommodate her family situation.

The Investigator also noted the potential importance of Johnstone’s case for resolving similar future cases through the development of jurisprudence “surrounding the issue of accommodation based on family status.”

Despite these findings the Commission decided to drop the complaint. It offered Johnstone the following rationale for the decision:

• the Commission was satisfied that the employer accommodated Johnstone’s request for a fixed shift to meet her child care obligations;
• the evidence showed that Johnstone accepted the scheduling arrangement and did not request full-time hours; and
• the Commission believed that permitting Johnstone to be relieved from the obligation of working rotating shifts for 37.5 hours per week and to instead work fixed shifts for up to 34 hours per week did not constitute a serious interference with Johnstone’s parental duties nor did this accommodation discriminate against her based on family status.

Johnstone applied to the Federal Court to quash the Commission’s decision.

In Johnstone v. Canada (Attorney General) (January 16, 2007), the Federal Court allowed Johnstone’s application and sent the matter back to the Commission to be decided on the merits. The Court noted that the Commission dismissed Johnstone’s complaint on the basis that she had agreed to the employer’s accommodation terms (an issue of fact) and because the challenged fixed-shift policy was not discriminatory (an issue of law). The Court held that the Commission erred on both issues.

ISSUE 1) EMPLOYEE DID NOT ACCEPT ACCOMMODATION

The Court noted that the Investigator and the Commission disagreed about whether the employer’s proposal was accepted by Johnstone or was imposed on her. The Court found that the Commission offered no reasons for its conclusion that Johnstone’s acceptance was voluntary, while substantial evidence of the employer’s inflexibility pointed to the opposite conclusion. The Court held that the Commission’s failure to give any reasons for rejecting the Investigator’s findings rendered unreasonable and deficient the Commission’s conclusion that Johnstone voluntarily accepted the employer’s offer.

ISSUE 2) ‘SERIOUS INTERFERENCE’ TEST FOR FAMILY STATUS DISCRIMINATION WAS ERRONEOUS

The Court ruled also that the Commission erred in taking the view that the employer’s policy on fixed shifts must have been a “serious interference” with Johnstone’s parental duties in order to amount to discrimination. The case law did not impose a requirement that there be “serious interference” before a prima facie case of discrimination is established. The Court said the fact that Johnstone was adversely affected by the application of the employer’s policy was enough to establish a prima facie case of family status discrimination that warranted taking her case forward to adjudication.

The Court also expressed concern that the Commission ignored the Investigator’s view that Johnstone’s complaint raised an important human rights issue which could come up in future cases. The Court noted the law is not well settled with respect to the balancing of competing workplace interests involving employees in need of family status accommodation. The employer’s policy imposed part-time status on Johnstone in return for her obtaining fixed-shift employment. The Court stated this raised issues deserving of further scrutiny:

“One important issue raised by Ms. Johnstone’s complaint is, therefore, whether it is legally appropriate to reduce an accommodated employee’s hours of work as a means of either addressing a perceived non-compensatory workplace advantage (e.g. the avoidance of rotating shifts) or as a disincentive to employees who might seek accommodation for family status reasons.  This is, of course, not a question for the Court to decide but the Commission’s obvious failure to consider it raises a further concern about the correctness of its decision to summarily dismiss Ms. Johnstone’s complaint.” 

In the result, the Court sent the matter back to the Commission to be decided using the principles set out in the Court’s judgment.

In our view

The type of decision made by the Commission is referred to as a screening decision, and while courts accept that they should not be overly eager to second-guess this function, they do insist that such screening decisions have a demonstrably rational basis of support. Where a complaint has been dismissed at this preliminary stage, the decision will attract even closer judicial scrutiny. In cases like this, where the complaint was dismissed without convincing reasons and against the findings and recommendation of the Commission’s Investigator, the courts will likely take a particularly close look.

For further information, please contact Vicky Satta at (613) 940-2755.