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Working mother wins human rights decision

Unionist
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Joined: Dec 11 2005

Bravo!


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Unionist
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Joined: Dec 11 2005

From CBC.ca:

Quote:

A Canada Border Services Agency officer who had to give up her full-time position after the birth of her first child has won a six-year battle with her employer over its failure to accommodate her.

In a decision handed down on Friday, the Canadian Human Rights Tribunal said the federal agency discriminated against Fiona Johnstone and employees like her who seek accommodation based on family status.

Johnstone had been working a variety of shifts as a full-time officer at Pearson Airport in Toronto and had a good record with her employers when she had her first child in 2003.

Both before going on maternity leave and before returning to work in 2004, Johnstone had asked her employer if she could come back on an altered schedule, one in which she worked three static 13-hour shifts a week, with no preferred start time. [...]

Her employer denied the requests, saying the Canadian Border Services Agency had an unwritten policy not to provide full-time hours to those requesting accommodation on the basis of child-rearing responsibilities. The agency came back with an alternative schedule of three days of 10-hour shifts and one day of a four-hour shift.

Johnstone argued that the agency has and continues to accommodate employees for medical and religious reasons or in the event of medical reasons involving children. [...]

The tribunal agreed, saying that the agency didn't establish a strong enough case that altering the schedule to accommodate Johnstone would have constituted an undue hardship for the employer and other workers.

Non-discrimination in employment on the basis of sex is meaningless unless positive measures are taken to allow women to balance their work and personal lives. More wins like this are needed to break down the barriers that persist.


Jabberwock
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Joined: May 10 2007

This is great news, since establishing a prima facie case for discrimination on the basis of family status has heretofore been difficult. It seems like arbitrators have often only found in favour of parents in extreme cases, ie child has special needs. Hopefully this will help other women going forward. We are dealing with a case in my workplace right now that might end up with an accomodation grievance, with the company attempting to crackdown on previously flexible start times for a single mother with four kids.


Yiwah
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Joined: Oct 12 2006

Flex scheduling could greatly help all working parents, and is hopefully becoming more recognised as an excellent way to keep skilled employees.


Jabberwock
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This goes further, though, Yiwah, in recognizing the employer's duty to accomodate on the basis of family status.

Hopefully, it will become a 'benchmark' decision.

 

 


Yiwah
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Joined: Oct 12 2006

Jabberwock wrote:

This goes further, though, Yiwah, in recognizing the employer's duty to accomodate on the basis of family status.

Hopefully, it will become a 'benchmark' decision.

 

 

Hopefully...though right now it will only apply to federal employees.


Unionist
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Joined: Dec 11 2005

Here's the full text of the decision.

At paras 384-387 near the end, the Tribunal explains, with obvious regret, why it's not allowed to award legal costs to the complainant, because of a prior decision of the Federal Court of Appeal.

Fiona Johnstone was a unionized employee, represented by the Public Service Alliance of Canada. Yet I see no indication in the decision - nor in this article on the PSAC website - that the union was backing her complaint. In fact, the union could just as well have filed a grievance, given that the Supreme Court has long since decided that arbitrators have jurisdiction to decide accommodation issues and many other human rights and employment matters.

I'd like to know more about this, but my contacts with PSAC are pretty non-existent. If anyone can shed light, that would be appreciated. In our union, we rarely send members off on their own to other tribunals to fight as individual complainants. I hope that's not what happened here.


RevolutionPlease
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Joined: Oct 15 2007

Good eye brother.  And {sit down} I'm not unionized.  {shock}  It's all good.


Yiwah
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Unionist wrote:

Here's the full text of the decision.

At paras 384-387 near the end, the Tribunal explains, with obvious regret, why it's not allowed to award legal costs to the complainant, because of a prior decision of the Federal Court of Appeal.

Fiona Johnstone was a unionized employee, represented by the Public Service Alliance of Canada. Yet I see no indication in the decision - nor in this article on the PSAC website - that the union was backing her complaint. In fact, the union could just as well have filed a grievance, given that the Supreme Court has long since decided that arbitrators have jurisdiction to decide accommodation issues and many other human rights and employment matters.

I'd like to know more about this, but my contacts with PSAC are pretty non-existent. If anyone can shed light, that would be appreciated. In our union, we rarely send members off on their own to other tribunals to fight as individual complainants. I hope that's not what happened here.

 

OOooh...interesting...I'm seriously rusty on my Labour law, so please take what I say with that in mind. But I did find this:

Quote:

[12] Previous to the hearing, the CBSA had sought to add the Union as a party. One of the main reasons given by CBSA to add the Union was that the VSSA prevented CBSA from considering Ms. Johnstone's request for static shifts, encompassing full-time hours over only 3 days per week. This argument was not advanced by CBSA at this hearing.

In paragraph 113, the motives for the CBSA to try to have the Union added, was that they felt the Union should share some of the blame.

Quote:

[13] Ms. Johnstone and CHRC opposed the application on the grounds that none of the remedies sought by Ms. Johnstone required amendments to the governing collective agreement or to the VSSA. The Union provided an affidavit to the Tribunal taking a position of support of the Complainant, but did not actively participate. This motion was dismissed by the Tribunal on the basis that the Union's participation in the hearing was not necessary for the presentation of relevant evidence or the Tribunal's ability to adjudicate on the matters so raised. It was also dismissed because the application was made late in the process, and the Union's participation would not be necessary to properly dispose of the liability portion of the complaint [See 2009 CHRT 14].

Again in paragraph 113, she opposed this because she wasn't implicating the Union, and the Union supported the remedies she sought.

Also, members of the union did provide evidence, such as Murray Star, an Executive Steward.

 

It doesn't appear that the Union left her dangling, but that their participation as parties to the action would have possibly shifted attention away.  It seems they supported her in ways they were able.  I'm not sure of labour policies in terms of paying for legal support in a Human Rights Tribunal context...don't Unions usually help with these costs if it goes to the regular court?

 

What I'm rusty on is that I have a niggling remembrance of a case that said you have to go through the Labour Board for things like this, but obviously that's not quite correct.


Unionist
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Joined: Dec 11 2005

She never needed to go to the CHRT. The union could have pursued exactly the same claim and remedies via grievance arbitration. That's the effect of the Supreme Court decisions in Weber v. Ontario Hydro and Parry Sound. That's why I was curious why the union didn't grieve. I never doubted PSAC supported her complaint.

The labour board in question would be the PSLRB, and it would have no jurisdiction over such a matter.

 


Yiwah
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Unionist wrote:

She never needed to go to the CHRT. The union could have pursued exactly the same claim and remedies via grievance arbitration. That's the effect of the Supreme Court decisions in Weber v. Ontario Hydro and Parry Sound. That's why I was curious why the union didn't grieve. I never doubted PSAC supported her complaint.

The labour board in question would be the PSLRB, and it would have no jurisdiction over such a matter.

 

Thank you, yes I looked at Weber and Parry, which found arbitration a 'competent court of jurisdiction', but in my quick glancing, I'm not sure these are the cases I'm thinking of in terms of where you're supposed to go first.  In any case, that's why when I read your last post I thought, "wait!  Unionised workers are supposed to go eleswhere for these kinds of things!"  I hadn't remembered that until then.  Yet there are a fair amount of CHRT judgments involving unionised workers, so I'm going to have to review how that decision (to go to the CHRT) is made.


Unionist
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Joined: Dec 11 2005

A unionized employee can go either to grievance arbitration or to the human rights commission. They have concurrent jurisdiction, at least as the law now stands. It's either/or, or even both.

This was a useful survey of the case law just after Parry Sound, and to my knowledge nothing has changed since:

http://www.chrt-tcdp.gc.ca/aspinc/search/vhtml-eng.asp?doid=527&lg=_e&is...

Having said that, and having been involved in many such workplace issues (mostly accommodation of disability, family status, religious belief, etc.), I've seen human rights commissions blow hot and cold. During some periods of time, they will accept, act on, even welcome and encourage complaints, without even asking whether there's a union and whether the employee has looked there first. That was (in my experience) an unfortunate and counterproductive policy. It led to long delays, duplication, inconsistency, and rarely did it produce wise decisions. The wheel has turned in recent years. Human rights officers will now contact the union themselves, ask if they're handling the issue, and back off until the union is done. Then they'll see whether there's any residual issue to be dealt with.

That's why I want to know more about this case. Did PSAC file a grievance initially? Did they "lose"? Did they then go the second route, via the individual? Etc.


Jabberwock
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Joined: May 10 2007

Do you think it was the aspect of damages was the reason the went to the chrt instead of through the greivance process? If it was resolved prior to arbitration there would be no damages. I am curious as well- if the arbitrator finds against the grievor, can h/she then go to the CHRT? 

 


Unionist
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Joined: Dec 11 2005

Jabberwock wrote:

Do you think it was the aspect of damages was the reason the went to the chrt instead of through the greivance process?

Can't be. Grievance arbitrators have all the powers needed to award damages, not only remedies for lost income, but aggravated and punitive damages as well. That was confirmed several years ago by the Ontario Superior Court of Justice, where they actually overruled an arbitrator's decision on the grounds that she had thought she wasn't allowed to award such damages!

Quote:
If it was resolved prior to arbitration there would be no damages.

Why not? Settlements are whatever the parties agree to. I've seen negotiated settlements that provide significantly more in cash than would be likely at arbitration. It can happen for many reasons, including the desire of the employer to avoid public exposure, etc.

Quote:
I am curious as well- if the arbitrator finds against the grievor, can h/she then go to the CHRT? 

Yes, but unless the arbitrator committed some gross injustice (in which case, the proper recourse would be judicial review before a court), the CHRT is extremely unlikely to "re-try" the case - precisely because the arbitrator has full jurisdiction. What I have seen is an employee who got a partial win at arbitration (reinstatement without compensation) then file a human rights complaint, and the employer coughs up some money! But I think had the complaint gone ahead, it wouldn't even have made it to the tribunal. Again, it was about avoiding embarrassment or litigation expenses.

ETA: You know what - I'm going to modify the "Can't be" in my first line. These are federal public service workers. They come under separate legislation (not the Canada Labour Code), and there's stuff in there which is a bit bizarre. It's just conceivable that their legislation ties arbitrators' hands in a way that neither the federal nor any of the provincial labour relations acts do. So I'll wait for someone who knows more before giving a definitive answer.

 


Jabberwock
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Interesting, Unionist. I am in the midst of an accommodation/human rights issue at work, and the impression we have received from legal is that damages will be a hard sell even with an arbitrator. As well, the employer would often in a settlement require the employee to aver that no further action would be taken against the employer, so I was just wondering if the union felt the grievor would be more tied down by that route. 

Our company doesn't seem to have any issue with embarrassment, so we will see how our situation goes. 

 


Unionist
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Jabberwock wrote:

Interesting, Unionist. I am in the midst of an accommodation/human rights issue at work, and the impression we have received from legal is that damages will be a hard sell even with an arbitrator.

Well, that depends more on the facts than the forum. Punitive, exemplary, aggravated damages are always a hard sell, I think. Compensatory damages are pretty well automatic if the employer is found liable.

Quote:
As well, the employer would often in a settlement require the employee to aver that no further action would be taken against the employer, so I was just wondering if the union felt the grievor would be more tied down by that route.

Again, a settlement says whatever the parties want it to. I find it absolutely normal and obvious that an employer would say, "Ok, I'll pay you $50K plus an apology to settle your grievance, but not if you're going to have a second kick at the can before the ink is dry!" Just ask your lawyers what their best guess is as to a damage award before the human rights tribunal (whatever province or territory or country it's under), and use that as your benchmark for a settlement.

Quote:
Our company doesn't seem to have any issue with embarrassment, so we will see how our situation goes.

If ya can't shame 'em, beat 'em. Good luck.

 


kropotkin1951
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Joined: Jun 6 2002

Unionist in my experience the specifics of the case mean everything. I have found that often a Human Rights complaint can get the companies attention faster than a grievance.  It all depends as well on who the arbitrators named in this agreement are and what their records are in similar cases. As well she may have been requesting something that was divisive and chose to go the route of least problem.

I've seen unions pay for outside counsel when the conditions were better for both the worker and the union in going to Human Rights.  If it was a grievance there is no precedent in a grievance award other than deference and maybe the same agreement.  A Human Rights tribunal ruling means it has some precedent value for all the union members across their sites.


Unionist
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Joined: Dec 11 2005

You may be right K about the arbitrators, especially in this particular context. In the federal public service, I don't think they even get to pick their arbitrators - they're appointed by government as part of the Public Service Labour Relations Board. It's nonconsensual, and I don't think the parties even pay fees.

In my experience, in the private sector, arbitrators are a better choice in a unionized workplace where issues of seniority, scheduling, etc. may factor in. Of course, you can get a bad decision from any forum. And if you have arbitrators in a private sector agreement whom you don't trust to handle human rights issues at least as sensitively as human rights tribunals, better replace them post haste.

Historically, labour arbitrators were dealing with human rights type issues (e.g. discipline and dismissal being voided on the basis of various kinds of discrimination), using "equitable" principles, long before human rights legislation caught up and applied the same principles to all workers. Likewise with issues like the right to refuse unsafe work. Personally, I like the notion of disputes being handled by consensually-appointed arbitrators who are not named by any government.

ETA: Re precedential value - IANAL, but I don't think HR tribunal rulings are legally precedent-setting for any other tribunals, or no more so than the persuasive power of a well-reasoned arbitration award. I could be wrong in that...


kropotkin1951
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Joined: Jun 6 2002

Unionist wrote:

Personally, I like the notion of disputes being handled by consensually-appointed arbitrators who are not named by any government.

ETA: Re precedential value - IANAL, but I don't think HR tribunal rulings are legally precedent-setting for any other tribunals, or no more so than the persuasive power of a well-reasoned arbitration award. I could be wrong in that...

That in effect is what a HR Tribunal is supposed to be.

An arbitration award is narrower immediately because it applies to a smaller group of workers.  I like unions to take on battles with their resources that will immediately help both their members and other similarly situated workers. If PSAC helped fund this then I am very impressed.

Also Unionist you are correct that if this is a federal agency there is a very limited right to arbitrate Treasury Board decisions depending on what your job is classified as.  I will just have to read the case I guess to get a better understanding.  thanks for the link.


Unionist
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Joined: Dec 11 2005

Another point which may or may not have weighed in this. The "standard of review" of a HR tribunal's decision by a court is "correctness". That means if the court finds the decision was wrong - either on law or fact - it can overturn it. Arbitration awards, however, have a "privative clause", meaning they can't be appealed even in the way a lower court decision can be. A court can't overturn an arbitration award even if it disagrees with its view on facts and law. It can only set it aside if it finds that the arbitrator exceeded her jurisdiction, or that the decision was "patently unreasonable".

Courts don't defer to human rights tribunal decisions.

Anyway, it's all speculation at this point. For all I know, this was a conscious decision by PSAC for the best of reasons. There's no doubt that PSAC supported her.


Fin
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Joined: Oct 16 2012

Hi, PSAC did support me.  They provided my lawyer and paid for the second lawyer, Andrew Raven.  Other people had grieved the same issue before me and had been denied.  I went to the CHRC because there was no further avenue to pursue in house.  It was a non-issue as far as management was concerned. 


Fin
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Joined: Oct 16 2012

Hi, PSAC did support me.  They provided my lawyer and paid for the second lawyer, Andrew Raven.  Other people had grieved the same issue before me and had been denied.  I went to the CHRC because there was no further avenue to pursue in house.  It was a non-issue as far as management was concerned. 


Unionist
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Joined: Dec 11 2005

That's great to hear - and thanks so much for coming here to let us know!

I wonder whether those hand-picked federal arbitrators have changed their ways in light of your case.


Unionist
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Joined: Dec 11 2005

And more great news:

Federal court upholds Canadian Human Rights Tribunal decision on family status accommodation

Quote:

The Federal Court decision, released late last week, rejected CBSA's argument, finding that the definition of family status includes childcare obligations.  The decision confirms that family status must be offered the same protection granted to all the other prohibited grounds of discrimination under human rights legislation.

“This is a huge win for all Canadian workers with family obligations,” said PSAC National President, Robyn Benson. “It is clear now that employers must carefully consider each and every family status accommodation request and accommodate them short of undue hardship.”

 


Unionist
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And the good news just keeps on coming:

Federal Court of Appeal rules CBSA discriminated against PSAC member Fiona Johnstone by failing to accommodate her family obligations

Quote:

In upholding the decision of the Tribunal, the Court of Appeal rejected the narrow approach to family status accommodation argued by the government. The Court confirmed that human rights legislation is to be interpreted in a broad and liberal manner and that family status includes child care and other legal family obligations.

The Court emphasized that there should be no hierarchy of rights, such that the test for family status accommodation was more difficult to meet than the other grounds of discrimination. Instead, employers are required to conduct a case-by-case analysis with a view to accommodating the particular needs of individual employees.

PSAC wishes to congratulate Fiona on yet another win in this long legal saga which advances the law for all Canadian workers.

Hopefully the government won't seek leave to appeal this one. The Supreme Court is getting way too uppity these days for its taste, anyway.

 


Sineed
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Joined: Dec 4 2005

Thanks for the updates, U.


iyraste1313
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Joined: Jan 18 2014

PSAC wishes to congratulate Fiona on yet another win in this long legal saga which advances the law for all Canadian workers.

 

Although I congratulate the people who managed to raise the funds to support this action, to say that this advances the law for all Canadians??
This suggests that ordinary Canadians without the $ millions have access to civil justice in this country?

Surely someone is joking here, or defending another of the great myths that make this country what it isn't.

The Charter of Rights of Canada, our very constitutional framework! has absolutely zero influence in every law passed in this country. (We have no jurisdiction argument.)

And without a battery of fancy lawyers with money to lavish on court costs? No one will ever get a fair hearing, even if you can get into Court on a Charter argument.

Any anyone wishing to try? There is enough case histories now to put you at grave risk!

I can quote ad infinitum on my own personal cases, but the Toronto bylaw that shut down the Occupy! movement of Canada, is my favourite example.


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