Childcare and the duty of employers to accommodate

Finding child care can be difficult at the best of times.  For PSAC member Fiona Johnstone, it was a nightmare.  

Johnstone worked an unpredictable and frequently variable shift for the Canada Border Services Agency at Pearson International Airport. Her husband also worked for CBSA on rotating shifts.  With her shift changing day to day, it was almost impossible for her to make childcare arrangements in spite of her extensive efforts to do so. Her family members were ready to help, but even they needed a fixed routine.  

When she asked for a fixed shift – day, evening or night – her employer refused to accommodate her. Her only alternative was to be reduced to part-time work.

In 2004, Johnstone filed a human rights complaint against CBSA, alleging discrimination on the basis of family status because her employer failed to accommodate her family obligations. In 2010, a Canadian Human Rights Tribunal agreed that CBSA’s policy requiring employees with childcare obligations to become part-time employees and lose their full-time status and pension entitlements just to be able to meet their child care needs was discriminatory. Accommodating her would not create ‘undue hardship’.

“This Tribunal finds that the freedom to choose to become a parent is so vital that it should not be constrained by the fear of discriminatory consequences.  As a society, Canada should recognize this fundamental freedom and support that choice wherever possible.”  

The Tribunal ordered CBSA to stop its discriminatory practices against employees who need accommodation for childcare responsibilities and to establish a written policy to address these kinds of requests including a process for assessing individual situations. It also ordered CBSA to pay Johnstone for lost wages and benefits, including the overtime she would have received and the pension contributions that would have been made had she been able to work full time. Johnstone also received $15,000 for pain and suffering and $20,000 for CBSA’s willful and reckless misconduct.

After two unsuccessful appeal attempts, the federal government finally decided in May 2014 to stop trying to have the Tribunal’s decision overturned.

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March 4, 2015
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