by Ralph Nero and Ida Martin
Do parents of young children have the right to refuse a geographic transfer? In the case of three employees at the Canadian National Railway (CNR), the Canadian Human Rights Tribunal (CHRT) has recently answered “yes.”
Last month, the CHRT released three decisions dealing with three CNR employees, Cindy Richards, Denise Seeley, and Kasha Whyte, who were all fired for failing to accept a transfer to a new position in a different province. These women claimed that CNR violated their human rights on the basis of family status by terminating their employment when they were unable to relocate from Jasper, Alberta, to Vancouver, British Columbia, to fill a shortage.
The CNR collective agreement permits CNR to require certain classes of employees to transfer to fill shortages. All of the fired employees were in a class of employee that CNR could force to transfer upon 15 days notice.
A couple of facts made the transfer to Vancouver particularly challenging for anyone with significant family obligations:
- the relocation from Jasper to Vancouver would have been for an unspecified length of time;
- the hours in Vancouver were unpredictable; and
- the employees wouldn’t discover from which station they would work until arriving in Vancouver.
The employees claimed that because of their particular family obligations, they would be unable to transfer. Their family situations were as follows:
Cindy Richards is divorced and has primary custody of her two children. The divorce order and custody agreement stated that the two parents would have joint and shared custody of the children. Also, these documents provided that neither party was to reside outside Jasper with the children without giving the other party 90 days’ written notice of the move. (Cindy Richards v. Canadian National Railway)
Denise Seeley is the parent of two young children. She told CNR that a temporary move to Vancouver, with no information on how long she would have to stay or about the housing arrangements once she arrived, would disrupt her children’s care and make it impossible for her to arrange appropriate child care. In addition, her husband is also a railroad employee with long absences and unpredictable schedules. (Denise Seeley v. Canadian National Railway)
Kasha Whyte is a single parent and the mother of a boy who in July 2005 (the time of the complaint) was five years old. Her son had been diagnosed with respiratory difficulties and had been referred to specialists. (Kasha Whyte v. Canadian National Railway)
All three employees brought their concerns to CNR’s attention. CNR granted them each an extension of the 15-day time limit to report to Vancouver. Ultimately, however, CNR required each to transfer and when none of them did, it fired them.
Applying the law
The CHRT conducted an extensive review of the family status case law, including its very recent decision in Johnstone v. Canada Border Service Agency. It concluded that the three employees had duties and obligations generally incurred by parents and as a consequence of those duties and obligations, the employees, because of CNR’s rules and practices, were unable to participate equally and fully in employment with CNR. As such, they had established a prima facie case of discrimination, one that is sufficient to proceed. Because of this, CNR had the duty to accommodate to the point of undue hardship.
The CHRT was unimpressed with CNR’s efforts at accommodation. It said that CNR hadn’t taken the employees’ concerns seriously, failed to meet with them, failed to address their letters, hadn’t followed CNR’s own accommodation policies, and had treated family status accommodation as a lesser type of accommodation than accommodation for other grounds protected by human rights legislation.
As a result, the employees were successful, and the CHRT granted substantial remedies. The employees were awarded reinstatement, compensation for lost wages, $15,000 each in compensation for pain and suffering, and $20,000 each in compensation for willful or reckless conduct. Also, the CHRT ordered CNR to review its accommodation policy.
Takeaway for employers
The big takeaway for Canadian employers is that requests for accommodation on the basis of family status should be treated in the same way as requests for accommodation based on other protected grounds. When an employee raises a concern about conflict between work and family obligations, talk with the employee. Find out the employee’s particular problems and needs. If it appears to be a situation that could require accommodation, consider and discuss possible forms of accommodation.
Remember that the duty to accommodate in Canada is to the point of undue hardship. Dismissing an accommodation request simply for the reason that “if she gets to do it, everyone will do it” won’t likely prevail if there is ever a human rights complaint.