Child­care need does not trump need to staff ap­pro­pri­ately

Court’s com­mon sense ap­proach of­fers les­sons on deal­ing with em­ployee de­mands, Howard Le­vitt writes.

Saskatoon StarPhoenix - - FINANCIAL POST - Howard Le­vitt is se­nior part­ner of Le­vitt LLP, em­ploy­ment and labour lawyers. He prac­tises em­ploy­ment law in eight provinces. The most re­cent of his six books is War Sto­ries from the Work­place: Columns by Howard Le­vitt. Twit­­vit­tLaw

Ma­ter­nity leave is not a job se­cu­rity blan­ket.

Upon be­ing hired as a sched­uler by Cus­tom Gran­ite and Mar­ble, a busi­ness based in Stoney Creek, Ont., Tina Peter­nel was in­formed that flex­i­bil­ity in at­tend­ing early morn­ing starts was crit­i­cal for her role. Although she for­mally started at 10 a.m., she was ex­pected to be avail­able for early morn­ing calls and meet­ings. Pro­vided a cell­phone by her em­ployer, Peter­nel re­ceived work-re­lated calls as early as 6 a.m.

As the par­ent of two young chil­dren, Peter­nel suc­cess­fully bal­anced the com­pet­ing de­mands of her work and fam­ily life with the sup­port of her mother, with whom she lived.

She then took a year­long ma­ter­nity leave for her third child. To­wards the end, Peter­nel at­tended Cus­tom’s of­fices to dis­cuss the con­di­tions of her re­turn. She was told that, ow­ing to changes in its op­er­a­tions, she would be ex­pected to con­sis­tently start work at 8:30 a.m.

Peter­nel balked. She ad­vised that she had ex­pe­ri­enced a fall­ing out with her mother who had moved out of the home and that out­side day­care had to be ar­ranged. While Peter­nel had full­time day­care for her in­fant, she had only ar­ranged for af­ter-school care for her older chil­dren. She asked whether she could work the hours of 10 a.m. to 5 p.m. to cover the be­fore-school care ar­range­ments.

Cus­tom could not agree. In re­sponse, Peter­nel in­formed it that she would at­tempt to find be­fore-school day­care for her two older chil­dren. In­stead, she never re­turned to work but pro­ceeded to sue Cus­tom claim­ing that it had failed to ac­com­mo­date her fam­ily sta­tus needs and that, by not restor­ing her to her for­mer hours, she had been con­struc­tively dis­missed.

Madame Jus­tice Eliz­a­beth Sheard of the On­tario Su­pe­rior Court of Jus­tice de­murred. An em­ployee is not en­ti­tled to the same job that she had be­fore the leave if the job would have changed in any event. Had she not gone on leave, her po­si­tion still would have changed and she would have been re­quired to start at 8:30 a.m. The judge ac­cepted the em­ployer’s ev­i­dence that its busi­ness had un­der­gone changes dur­ing the ma­ter­nity leave. The sched­uler job start­ing at 8:30 a.m. was an ap­pro­pri­ate, com­pa­ra­ble po­si­tion for Peter­nel.

Sig­nif­i­cantly, Cus­tom was ask­ing Peter­nel to do what she had al­ways done: to be avail­able at work early when it needed her to be there. Thus, the re­quire­ment that she start at 8:30 a.m. was not a fun­da­men­tal breach of her con­tract of em­ploy­ment. It was Peter­nel who was at­tempt­ing to change the terms of her em­ploy­ment agree­ment by chang­ing her daily start time to 10 a.m.

The fi­nal ar­gu­ment made by Peter­nel was that Cus­tom had failed to ac­com­mo­date her child­care re­quire­ments. How­ever, the court re­lied on her ad­mis­sion that she could af­ford child­care for each of her chil­dren; that there were preschool child­care op­tions avail­able to her; and that the hours that she was be­ing asked to at­tend were not un­rea­son­able. She had not co-op­er­ated in the ac­com­mo­da­tion process and had been less than can­did with her em­ployer on her child­care op­tions.

Not only was her ac­tion dis­missed, Peter­nel was or­dered to pay over $54,000 in le­gal fees to Cus­tom.

The com­mon sense ap­proach of the court in this case is use­ful for em­ploy­ers in ap­proach­ing in­creas­ingly stri­dent de­mands by em­ploy­ees for ac­com­mo­da­tion of child­care:


Ap­pre­ci­ate your statu­tory rights

Em­ploy­ers have lee­way to ad­just po­si­tions of em­ploy­ees who are on leave for bona fide eco­nomic rea­sons and need not fear the re­in­state­ment obli­ga­tions un­der em­ploy­ment stan­dards statutes.


Ac­com­mo­da­tion is a two-way street

Em­ploy­ees do not have the right to sim­ply de­mand cus­tom­ized hours of work and rely on child­care needs with­out do­ing their due dili­gence in at­tempt­ing to meet their em­ployer’s re­quire­ments.


Don’t be afraid to ask

An em­ployer is en­ti­tled to in­quire what ef­forts the em­ployee has made to lo­cate suit­able child­care and need not sim­ply rely on the em­ployee’s state­ment.

In this case, the em­ployee was found to be un­truth­ful in re­count­ing what she had done to find preschool care.


Care­fully draft em­ploy­ment agree­ments

Re­serve the right to change hours of work with the min­i­mum no­tice re­quire­ments of the ap­pli­ca­ble em­ploy­ment stan­dards statute.

That pro­vi­sion would al­low the em­ployer to make nec­es­sary ad­just­ments to hours of work with­out trig­ger­ing a con­struc­tive dis­missal.


Keep records of key ex­changes

The emails and cor­re­spon­dence be­tween the par­ties proved to be of cru­cial im­por­tance to the court in de­ter­min­ing a chronol­ogy of rel­e­vant dis­cus­sions and mak­ing find­ings of fact. Take ap­pro­pri­ate steps to main­tain those records.


Em­ploy­ees do not have the right to sim­ply de­mand cus­tom­ized hours of work and rely on child­care needs with­out do­ing their due dili­gence in at­tempt­ing to meet their em­ployer’s re­quire­ments, writes Howard Le­vitt.

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