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HomeMy WebLinkAboutZavitz-Gocan 15-06-15 IN THE MATTER OF AN ARBITRATION UNDER THE COLLECTIVE BARGAINING ACT, 2008 ~ BETWEEN ~ FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY (“EMPLOYER or COLLEGE”) ~ AND ~ THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (“UNION”) AND IN THE MATTER OF AN INDIVIDUAL GRIEVANCE (ZAVITZ-GOCAN) BOARD OF ARBITRATION Deborah Leighton, Chair Michael Riddell, College Nominee Sherril Murray, Union Nominee APPEARANCES For the Employer Robert J. Atkinson Don McIntyre Gary Lima Stephen Patterson For the Union Lesley Gilchrist Jesse Gutman Darryl Bedford Kathryn Tamasi 2 Introduction [1] This award addresses the grievance of Dr. Amanda Zavitz-Gocan, a professor in the School of Language and Liberal Studies, alleging that the college discriminated against her on the basis of family status and failed to accommodate her, contrary to Article 4 of the Collective Agreement and Section 5(1) and 11 of the Ontario Human Rights Code, R.S.O 1990, c.H.19 (as amended) (the Code). The grievor has two children who at the time of the grievance were seven and four. One of the children has significant health issues. It is the union’s position that the grievor has suffered serious adverse effects because the college has scheduled her increasingly in early morning and evening classes outside of the hours that daycare covers. She spoke to the chair of her school and advised him of her difficulties in finding reliable childcare when she was scheduled for an 8 a.m. class or after 5 p.m. The chair told her that the college did not approve scheduling exceptions for childcare. The grievor was also advised by an employee in scheduling that the college had never granted a scheduling exception for childcare. She made two formal requests to the committee of deans that reviews scheduling request. The committee denied both without reasons. This led to a serious struggle to provide adequate care for her children, including one semester where she was unable to arrange consistent, reliable care before the semester began and had to rely on finding a babysitter on an ad hoc basis. [2] It is the union’s position that the employer has an obligation to accommodate employees to be productive in the workplace and allow them to fulfill parental obligations. The college did not try to accommodate the grievor. Instead, it applied a general rule that childcare needs would not be considered. Thus, the college discriminated against the grievor because of her family status. The union seeks a declaration that the college breached the Collective Agreement and the 3 Code. It also seeks an order that the college consider the grievor’s family status and work to accommodate her needs unless to do so would result in undue hardship. Finally, the union seeks damages for the breach of the grievor’s human rights and compensation for babysitting costs that were incurred after the hours of her children’s daycare. [3] The college’s position is that it has not violated the grievor’s human rights. The college contends that union has failed to satisfy a prima facie case of discrimination and therefore there is no trigger for the college to accommodate her. In scheduling classes within the normal teaching day, the college has not violated the Code because it interferes with her obligations for childcare. The college views the grievor’s situation as similar to tens of thousands of couples, where both parents are working full-time. [4] Further, the college said that in order to make out a prima facie case of discrimination the union must show a substantial interference with childcare responsibilities and needs. The union must prove that the employee has tried to provide childcare and has failed to meet childcare needs. The college contends that the grievor and her husband have made choices on how to balance their work and childcare that have interfered with their childcare responsibilities. The college acknowledges that it was not easy but the evidence shows that the grievor met her childcare responsibilities. [5] Thus in applying the legal principles to the facts before us we should find that there is no prima facie case for discrimination for family status. The college considered that it had no duty under the law to accommodate the grievor’s childcare needs. In the alternative the college 4 submitted that the grievor’s blanket request not to be scheduled in one case before 8 a.m. and after 4 p.m., and in the other not to be scheduled before 9 a.m. or after 5 p.m. was unprecedented, but was considered and denied by the committee of deans that reviews exception requests. [6] Having carefully considered the evidence and submissions of the parties, we find that the union has proven a prima facie case of discrimination against the grievor on the basis of her family status. We have summarized the relevant evidence, which is largely not in dispute. The Evidence [7] The grievor testified that she is married and has two children that at the time of the grievance were seven and four. Both children have medical issues, the younger child having serious health concerns that have resulted in hospitalization at times. She was last hospitalized in the fall of 2012. Her children’s healthcare needs have significantly impacted who she can hire for childcare. She testified that she must hire someone who is responsible and mature. She needs someone who can drive and who can handle a health emergency properly. [8] The grievor and her husband own a restaurant in St. Thomas. Her husband runs the restaurant and is the chef. His day begins around 5 a.m. and he is not normally home until between 8:30 to 9:30 p.m. The grievor testified that when the couple decided to buy the restaurant they knew the hours would be extensive for her husband. She wanted to have children and she knew she would have to do virtually 100% of the childcare. 5 [9] The grievor began working at the college in 2004 as a partial load professor. She became a full-time professor in the fall of 2005. In 2004, when she was finishing her Ph.D., she considered whether to apply to a university or to a college for work. She made a conscious decision to choose Fanshawe College because she believed she could concentrate on teaching, which is her passion, and manage her childcare obligations. It was her decision to put family before work as a full-time professor in a university. [10] When she was hired at Fanshawe, she understood that the hours of the college were 9 a.m. to 5 p.m. and that the later hours were for continuing education classes. At the time of her hire, she specifically asked about what the hours were for teaching and was advised that they were 8 a.m. to 5 p.m. In fact, the official hours then were 8 a.m. to 6 p.m. In May 2011, the college decided to extend regular classes to between 6 p.m. and 8 p.m. because of space concerns. [11] The grievor testified that her first child was born in February 2004. He attended Montessori daycare, which began at 7:30 a.m. and finished at 5:30 p.m. Her second child, born January 2007, began daycare in the winter term of 2008 after the grievor had had maternity leave of one year. When she was scheduled before 9 a.m. or after 5 p.m. she began to have problems covering childcare. She had been scheduled for a few 8 a.m. classes before 2010 but was never scheduled after 5 p.m. Between 2005 and 2010, her husband’s parents were able to help with childcare for some early morning classes. However, she cannot call on them for assistance now because they have eye problems and are not able to drive. 6 [12] In the fall of 2010, the children’s schedule was to be up at 8 a.m. and in bed by 8 p.m. Her son was in senior kindergarten in St. Thomas every other day. The days when he was not in school, he was at daycare. The youngest child was in day care for the whole week. Her son went to school on the school bus at 8:30 a.m., and returned home on the school bus by 3:50 p.m. [13] In the fall of 2010, the grievor taught until 6 p.m. every Wednesday and therefore required childcare from 4 to 6:30 p.m. on Wednesdays. On Thursday, she taught until 8 p.m. and so needed childcare between 4 and 8:30 p.m. She was able to hire a babysitter in the fall to cover these hours. The grievor testified that on Thursday the children had had their dinners and were in bed by the time she got home. In this semester she was paying $800 a month for day care and $10 an hour for babysitting. [14] In the winter of 2011, the children had the same routine as in the fall of 2010. The grievor was teaching on Wednesday from 4 to 6 p.m. and on Thursday from 4 to 6 p.m. She was able to see her children for a half an hour on Wednesday and an hour and a half on Thursday. Her day care costs remained the same at $800 a month and her babysitting costs were $160 for sixteen hours at $10 an hour. [15] In the summer session of 2011, the grievor had to hire a new babysitter because the old one was no longer available. The grievor was teaching an 8 a.m. the morning class and needed to leave for campus at 6:45 in the morning in order to be there at 7:30 a.m. to prepare for class. In addition to her normal day care costs, she incurred $150 in babysitting costs that term. 7 [16] In the fall of 2011, her eldest child was in school five days a week with the same bus schedule. Her youngest child was in day care 100%. That term she was teaching an 8:00 a.m. class on Thursday morning and required babysitting coverage for that day between 6:30 and 8:30 a.m. at the cost of $20 a week for the whole term. [17] In the winter of 2012, the grievor was teaching on Thursday from 3 to 6 p.m. and Friday mornings at 8 a.m. She had to hire another new babysitter for that term to cover the early morning requirement on Friday and the late requirement on Thursday. The costs were day care were $500 a month, her costs for additional babysitting was $50 a week for five hours for $10 an hour. [18] In the summer of 2012, both children were out of day care and the babysitter was covering all of their childcare hours. The grievor was scheduled for an 8 a.m. class on Friday morning. Thus, in addition to the $800 for what would have been normal day care costs to pay the babysitter, there was two and a half hours of extra work because of the early morning class at $25 each week. [19] In the fall of 2012, the grievor taught two 6 p.m. classes: Monday, Tuesday and Thursday. Her children had the same schedule except that her son was full-time at school; her daughter was half the week in day care and half the week in senior kindergarten. The children were also doing extracurricular activities. She needed a babysitter for three out of the five nights. She had additional babysitting costs of ten hours a week at $12 an hour for $20 a week for the 8 term. The grievor testified that she was frustrated by having to work until 6 p.m. three out of five nights when many of her other colleagues did not have to work this late. [20] In the winter of 2013, the grievor taught from 4 p.m. to 5:30 p.m. on Tuesday, and from 4 p.m. to 8:30 p.m. on Wednesday, and from 4 p.m. to 6:30 p.m. on Thursday. The grievor managed to have a babysitter cover Tuesday and Thursday but the babysitter was not available for the Wednesday evening class. Her mother and mother-in-law were able to cover some of the Wednesday evenings. A neighbour was able to provide care on one or two evenings. The grievor testified that it was very stressful not having consistent, reliable coverage for this evening class. The babysitting costs were approximately $500 a month in this term. In the summer term of 2013, the grievor taught Tuesday, Wednesday and Friday from 4 p.m. to 5:30 p.m. [21] In 2010, the grievor approached her chair at the time, Mr. Whitney Hoth, and told him that she had great difficulty in working evenings because of childcare needs. He said there was nothing he could do. The grievor also provided an email that she received from Mr. Terry Dobson who at the time was the lead for scheduling at the college. Mr. Dobson confirmed in an email dated November 23, 2010 that the college did not grant exceptions in schedules for childcare: There has been no movement on granting scheduling exceptions for childcare. The committee looks at each individual request that comes in from all faculty for all reasons and childcare requests have never been approved. It has nothing to do with who submits a request, but that everyone is treated equally. The grievor testified that she made two requests for accommodation for childcare, one in the fall of 2011 and one for the winter term of 2012. She explained that after that she did not apply for 9 an exception for childcare because she was told that the college never gave exemptions for childcare. [22] Her schedule changed each semester and timetables were not confirmed until approximately three weeks before the semester started. More recently, faculty have been able to look at schedules earlier on “F.O.L” or Fanshawe Online. [23] In addition to speaking to Mr. Hoth, the grievor also approached Mr. Stephen Patterson and Dr. Mike Van Bussel. The reaction was universal: while sympathetic, there was nothing that could be done. The grievor also raised the issue with the chair of the workload monitoring committee during the SWF (Standard Workload Form) process in 2013. The chair said that the committee would look into it but she never heard anything back from them. [24] The grievor testified in cross-examination, that she taught 14 weeks in the fall and winter terms and seven weeks in the summer term, either May-June or July-August. She teaches 35 out of 52 weeks in the year. Her teaching load varied between six and twelve hours. At times, she was on a reduced teaching load because she was acting as a coordinator. She agreed that the college does not dictate where she does work such as preparation and evaluation, or curriculum development but she also noted that there were required meetings that she had to attend during the day. [25] On cross-examination, the grievor was questioned about whether her husband could provide childcare. She testified that he left for work around 5 a.m. and did not return home from 10 work until between 8 p.m. or 9 p.m. When questioned about the restaurant being closed on Mondays and closing early on Thursday and why he would not be available to do childcare on those days, she testified that even when the restaurant is closed there is much work that must be done. The grievor explained that her husband is not able to leave the restaurant even for a few hours when the restaurant is open. She agreed on cross-examination that she knew he would be unavailable to help care for the children when they decided to buy the restaurant in 2003. When questioned about whether her husband’s business was a priority over their children, the grievor testifies that he had to be at work. His occupation demands that he be at the restaurant. She was adamant that it was not within her husband’s power to change the hours that he worked at the restaurant. She was firm in stating that she was not asking the college to accommodate her husband, but that she was asking for accommodation of her own schedule. [26] The grievor’s parents are still living and both were working. Her mother’s employment at a restaurant recently ended when the establishment closed although she is caring for the grievor’s brother who has medical issues. [27] The grievor also teaches an online course for the University of Western. It is a full-year, second level university course that runs from September to April. There is a forty-student cap in enrollment and the class size is normally between 30 and 35 students. She only has to be on campus for exams, a mid-term in December and a final in April. She testified that her Chair is aware of her teaching at Western and that she taught this course before she began teaching at Fanshawe College. 11 [28] When asked why she made formal scheduling exception requests in 2011 and 2012, only after she had filed her grievance, she referred to the email from Mr. Dobson in 2010 replying to her question about having an accommodation for family needs. She thought it was Mr. Dobson who was the decision maker for exceptions to schedules. [29] The grievor was also questioned about why she switched a teaching assignment with a colleague when this course was generally scheduled late in the day. The grievor noted that professors get course assignments before they get a schedule for when they are going to teach. She testified that it does not have to be scheduled late in the day. She did not ask this colleague to switch. He wanted the change. He was just back from a personal leave and she was trying to be helpful to a colleague. Thus in the fall of 2013 she ended up teaching this course until 6 p.m. [30] The employer provided evidence about the college and its scheduling system. A brief summary will be helpful. The college’s main campus is in the city of London. It has three regional campuses at St Thomas, Oxford County, and Simcoe. As of 2011-2012, there were 15,000 post-secondary, full-time students at the college. That number rises to 17,000 with adult learners and apprenticeships. Part-time students numbered over 26,000. There were approximately 2000 full-time and part-time employees. There were 480 full-time faculty. [31] In 2011-2012, the college offered 116 different programs: 64 part-time programs were offered; 18 apprenticeship programs; five adult training programs were also offered. There were 2,362 courses were offered in these programs: 5,298 part-time courses, 251 courses for apprenticeship programs and 60 for adult training courses. 12 [32] Most college courses are one semester long and there are three terms in the year. Each term is approximately 14 to 15 weeks. A full-time professor can only be assigned for 36 weeks in an academic year. Professors teach 14 to 15 weeks in the fall and in the winter and six or seven weeks in the summer. In the summer term, professors teach either in May-June or July-August. The maximum weekly hours of teaching is 18 hours. The maximum hours of work for a professor in a term are 44 hours a week. This includes teaching, preparation, grading and meeting with students and committee work. [33] The chair of the Department assigns courses in consultation with the professor and this is formalized in a SWF. The Collective Agreement requires that the SWF be signed six weeks before the start of term. For the fall, the SWF must be signed by the end of April or early May. For the winter, it must be signed in November and for the first summer term, it must be signed by mid-March. Professors do not learn the times of when the courses are going to be meeting until a few weeks after the SWF is signed. [34] Scheduling is complicated and depends on the number of courses and students and the space availability. Timetabling has become more difficult as the number of students has risen in the past few years. Classes are scheduled between 8 a.m. and 8 p.m. Monday to Thursday and between 8 a.m. to 6 p.m. on Fridays. In the past few years, the number of courses scheduled between 6 and 8 p.m. has risen because of the numbers of students. 13 [35] At the London campus, there are four faculties: Business, Technology, Health Sciences, Human Services and Arts, Media and Design. Each of the faculties has three schools and each school has a chair. The grievor works in the faculty of Human Services and Arts, Media and Design in the School of Language and Liberal Studies. The courses are all banded and all courses in a band are taught at the same time. The School of Language and Liberal Studies provides courses to other programs and for the general education and elective requirements of other programs. Therefore, this school has a broad range of courses, everything from film to sociology, which the grievor teaches. The school also provides its own programs and the courses to support those programs. Therefore, the school is largely a service school to other programs but still provides its own programs. In serving other programs, it has less control over scheduling. [36] Most programs try to schedule their required courses in the main part of the day and this sometimes means that the general education courses provided by the School of Language and Liberal Studies are scheduled into the later part of the day. It is a policy of the college to make every effort for full-time professors not to teach past 6 p.m. more than once and week and every effort is made not to schedule a person before 9 a.m. the next day when they have had to teach between the hours of 6 p.m. and 8 p.m. the night before. [37] Professors can ask for a scheduling exception. The standing committee of deans reviews scheduling exception requests each term anonymously. The grievor filed a scheduling exception request in 2011 and in the winter of 2012. The exception requests were denied. The grievor had also made requests to be relieved from teaching duties from Thursday in the afternoon because she ran a speaker series for the college and the committee granted these. 14 [38] Further evidence was provided on the School’s and Gen Ed curricula provided to other programs. The two resident programs are General Arts and Science, which can be a one-year certificate or a two-year diploma, and English as a Second Language, which is a one-year certificate. Gen Ed curricula for the college is provided by the school. Therefore, the school has 59 full-time faculty that teach social sciences, history, philosophy, English literature, political science, science and film. As Program Manager for the school, Mr. Patterson testified that he sees the product of scheduling, and over the years, he said, he has observed that the three-hour block courses tend to be scheduled in the early morning or late afternoon and evening slots. He advised the grievor that he thought the three-hour block course that she was teaching would be difficult to schedule in the middle of the day. He had two conversations on this point with the grievor, one at the door of his office, a casual meeting, and one in the fall of 2013 at the SWF meeting. [39] In cross-examination, Mr. Patterson recognized that in the fall of 2010 the grievor was scheduled for a one-hour course that ended at 7 p.m. In the winter of 2011, she was scheduled for a one-hour course on Wednesday that ended at 7 p.m. and in the summer of 2011, she had a one- hour course that started at 8 a.m. In the summer of 2012, the grievor had a one-hour class that began at 8 a.m. He observed that there was a trend for three-hour courses to happen in the mornings and in the evenings or early or late in the day but there will always be exceptions. [40] The college provided evidence that the committee did consider the grievor’s requests for exceptions to the schedule. Mr. Steven Firth, who has been a senior manager in Resource 15 Planning, testified that since 2009 he had been present at the committee of deans that review exception requests. He was present when the grievor’s requests were considered and denied. He said the normal workday goes to 6 p.m. and “it seemed to them not to be undue hardship for her husband to help.” The committee did not think the grievor’s request was appropriate because she was asking not to work two hours in the workday. [41] On cross-examination, Mr. Firth said that no one contacted the grievor for further information after this meeting. He also acknowledged that there was no discussion about accommodating the grievor’s request. He testified that one childcare exception had been granted for one term to a single mother who had to take a child to Kitchener for treatment two days of every week. He stated in cross-examination that only exceptional circumstances, such as this single mother’s, warrant an exception. There is no policy or guideline for assessing a request. The Committee uses an intuitive process to decide. They take each case at “face value.” [42] The parties relied on the following cases. We have carefully considered them in coming to our decision. Director, Ontario Disability Support Program v. Tranchemontagne, et al., 2010 ONCA 593 CanLII; Health Sciences Association of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 CanLII; Re Power Stream Inc. and International Brotherhood of Electrical Workers, Local 636 (Bender, et al.) 186 L.A.C. (4th); The Customs and Immigration Union and the Alliance Employees Union, Unit 15, 2011 CanLII 65128 (ONLA); Government of Alberta and Alberta Union of Provincial Employees, 2010 CanLII 98263 (AB GAA); Ontario (Workplace Safety Insurance Board) and Canadian Union of Public Employees – Local 1750, [2012] O.G.S.B.A. No. 132; Siemens Milltronics Process Instruments 16 Inc. and The Employees Association of Milltronics – Canada National Federation of Independent Unions, Local 3005, 225 L.A.C. (4th); Canadian National Railway v. Seeley and Canadian Human Rights Commission, et al., 2013 FC 117 CanLII; Ontario (Human Rights Commission) v. Etobicoke (Borough) [1982] 1 S.C.R. 202; Aldeen Morgan v. Herman Miller Canada Inc. and Corrado Fermo, 2013 HRTO 650; Johnstone v. Canada Border Services, [2010] C.H.R.D. No. 20; International Brotherhood of Electrical Workers; Communications, Energy and Paperworkers Union, Local 707 v. SMS Equipment Inc. (Cahill-Saunders Grievance), [2013] A.G.A.A. No. 41; Ontario Nurses’ Assn. v. Community Lifecare Inc. (Port Perry) (Clark Grievance), [2001] O.L.A.A. No. 614; Attorney General of Canada v. Fiona Ann Johnstone and Canadian Human Rights Commission, 2013 FC 113 CanLII; Attorney General of Canada v. Fiona Ann Johnstone and Canadian Human Rights Commission, 2014 FC 113 CanLII. Analysis [43] The issue before us is whether the union has proven a prima facie case of discrimination against the grievor because of the college scheduling her classes before 9 a.m. and after 5 p.m., thus interfering with her ability to provide regular, reliable and predictable care for her children. Article 4.01 A of the Collective Agreement and Sections 5(1) and 11 of the Code protect the grievor from discrimination based on family status. Section 5(1) provides: Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status, or disability. Section 10 (1) defines “family status.” It “means the status of being in a parent and child relationship.” 17 [44] Section 11 provides: (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground discrimination and of whom the person is a member, except where, (a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or it is declared in this Act, other than in section 17, that to discriminate because such ground is not an infringement of a right. (2) The Tribunal or Court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. [45] Article 4.01 A provides: The parties agree that, in accordance with the provisions of the Ontario Human Rights Code, there shall be no discrimination or harassment against any employee by the Union or the Colleges, by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap. [46] Family status has been recognized in the jurisprudence as including childcare responsibilities. The Federal Court of Appeal in Johnstone (2014), supra, said that arbitrators, adjudicators and judges “have been almost unanimous in finding that family status incorporates parental obligations, such as childcare obligations (para. 59). After reviewing the jurisprudence on family status, the Court concluded as follows: 18 There is no basis for the assertion that requiring accommodation for childcare obligations overshoots the purpose of including family status as a prohibited ground of discrimination. Indeed, without reasonable accommodation for parents’ childcare obligations, many parents will be impeded from fully participating in the work force so as to make for themselves the lives they are able and wish to have. The broad and liberal interpretation of human rights legislation requires an approach that favours a broad participation and inclusion in employment opportunities for those parents who wish or need to pursue such opportunities (para. 66). In explaining what childcare obligations should be protected the Court said that it is important not to trivialize the human rights protection by accommodating personal choices of parents to have children participate in sports, dance classes and the like (para. 69). Childcare obligations protected under family status are “those which a parent cannot neglect without engaging his or her legal liability.” We agree with these principles. [47] Before the decision in Johnstone (2014), there was a divide in the jurisprudence on what is required to prove a prima facie case of discrimination of family status. The Campbell River test requires a change in working conditions that leads to “serious interference with a substantial parental or other family duty or obligation of the employee” (para. 39). The Canadian Human Rights Tribunal in Hoyt and the Federal Court decision in Johnstone (2007), suggest that any interference of an employee’s childcare responsibilities that put him or her at a disadvantage is proof of prima facie discrimination of family status. No change in working conditions was required. Once an adverse effect is established, the duty to accommodate the employee is triggered. [48] In Power Stream, Arbitrator Jesin reviewed the two lines of cases on family status. He noted that the Campbell River case stated that not all adverse impacts on parents’ childcare 19 obligations would result in a finding of discrimination. It must be substantial. He found the approach in Hoyt and Johnstone (2007) that any inference with childcare would lead to a prima facie case of discrimination problematic, and adopted what some have called a hybrid of the two approaches (see Alliance Employees Union, supra). In wrestling with the issues before him, he said: Clearly, a parent has an obligation to maintain the health, safety and security of his/her children. A parent must ensure that children receive necessary medical attention, that they are safely transported to and from school and/or daycare, that they are provided with food, shelter and clothing. Parents also have an obligation to spend time with their children, to guide them, and to teach them skills. Parents provide for the enhancement of their children’s social and moral development and try to ensure that their children have a normal and happy childhood. This analysis is similar to that in Johnstone (2014), where the Court said that the childcare obligations must be “those which a parent cannot neglect without engaging his or her legal liability.” Clearly not all adverse impacts will result in a finding of discrimination. [49] Arbitrator Jesin also held that it was appropriate to consider the reasonable efforts of the employee to search for alternate daycare arrangements before any finding of discrimination on family status. I accept that it is appropriate for employees to make some efforts at self- accommodation before making a claim of discrimination. But employees should not be asked to make choices which are unreasonable in all the circumstances before a finding of discrimination can be made (para. 62). Thus, it is clear from both cases that parents must make reasonable efforts to meet childcare obligations. 20 [50] The Court cited several labour arbitration decisions that also held that part of analyzing whether a prima facie case has been proven should include an examination of the reasonable efforts made by parents: This principle has been recognized in numerous labour arbitration cases dealing with the issue. As noted in Alberta (Solicitor General) v. Alberta Union of Provincial Employees (Jungwirth Grievance), [2010] A.G.A.A. No. 5 (QL) at para. 64, “[i]n order to work, all parents must take some steps on their own to ensure that they can fulfill both their parental obligations and their work commitments. Part of any examination of whether a prima facie case has been established for family status discrimination must therefore include an analysis of the steps taken by the employee him or herself to balance their family life and workplace responsibilities (para. 89). The same principle was applied in Ontario Public Service Employees Union v. Ontario (Liquor Control Board of Ontario) (Thompson Grievance), [2012] O.G.S.B.A. No. 155 (QL) at para. 40: “This test requires an employee seeking accommodation to demonstrate he or she was not able to meet a family obligation by reasonable means other than accommodation in the workplace.” That same principle was also applied by a Board of Inquiry established under the Ontario Human Rights Code in Wright v. Ontario (Office of the Legislative Assembly), [1998] O.H.R.B.I.D. No.13 (QL) at paras. 309 to 311, and in Power Stream at para. 62 (para. 90). Indeed many of the cases put before us that did not find that the union had established a prima facie case were those that lacked evidence of sufficient effort by parents to meet childcare obligations. [51] Arbitrator Jesin agreed with the criticism in Johnstone (2007) regarding the Campbell River requirement that a change in an employer’s rule was a necessary element in finding discrimination. He thought that it was a relevant factor to consider. He also agreed with the reasoning of the Court that: It is often a change in the characteristics of family status that will precipitate a conflict between work and parental obligations and an existing rule that does not accommodate such change may be found to be discriminatory. Indeed that is no 21 different than an existing rule that fails to accommodate a newly acquired disability (para. 59). Arbitrator Jesin was also concerned that neither the tribunal nor the Court provided a test to determine when an adverse impact on family status would lead to a finding of discrimination (para. 52). We now have the benefit of a clear test in Johnstone (2014), which accords, in our view, with the analysis in Power Stream. The Court’s test says the impact on childcare must not be trivial or insubstantial. Arbitrator Jesin held that the impact must be serious on a substantial duty. In addressing what counts as a serious inference of childcare obligations, the Court in Johnstone (2014) said: Normally, parents have various options available to meet their parental obligations. Therefore, it cannot be said that a childcare obligation has resulted in an employee being unable to meet his or her work obligations unless no reasonable childcare alternative is reasonably available to the employee. It is only if the employee has sought out reasonable alternative childcare arrangements unsuccessfully, and remains unable to fulfill his or her parental obligations, that a prima facie case of discrimination will be made out (para. 88). We are of the view that this is essentially the same analysis. We are not bound to follow these cases, but they are helpful in analyzing the facts before us. The test for a prima facie case of discrimination for family status [52] Johnstone (2014) held that there are four requirements to meet a prima facie case. The grievor must establish: 22 (i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and (iv) that the impugned workplace rule interferes in a manner than is more than trivial or insubstantial with the fulfillment of the childcare obligation. [53] Counsel for the college submitted that the union has not established a prima facie case on family status and therefore there was no obligation to accommodate the grievor’s request. Counsel noted that the onus is on the grievor to prove a prima facie case of discrimination and then only if satisfied does the duty of accommodation arise. The duty to accommodate is part of the defense to a prima facie case. We agree with the college that there is no duty to accommodate unless a prima facie case is proven. However, as noted at the beginning of the decision we are persuaded that the union has proven a prima facie case. It is useful to organize our reasons for this decision under the criteria to establish a prima facie case set out in Johnstone (2014). Is the child under the grievor’s care and supervision? [54] There is no dispute that the grievor is the parent and legal caregiver of two young children who were seven and four at the time of the grievance. However, the college argues that the grievor is not the sole parent and according to Johnstone (2014) the grievor must show that neither she nor her husband can provide childcare. The union submits that it has provided evidence that the grievor’s husband works as a chef and owner of a restaurant. Because of the nature of his work, he is not able to provide childcare. 23 [55] The evidence is clear that except for Mondays and possibly Tuesdays the grievor’s husband was not available in the early morning, afterschool/daycare and dinner hours, when she had to teach before 9 a.m. and past 5 p.m. He is the chef and must be present when the restaurant is open. He is often working even when the restaurant is closed. We accept the union’s evidence that given the nature of the work the grievor’s husband was not available. In any case, the grievor is not relieved of her legal duty to care for her children because she has a husband. Johnstone (2014) makes it clear that having a partner does not change the grievor’s legal obligations to provide care and supervision to two young children, when he is not able to do so: First, it is not disputed that Ms. Johnstone had one and then two children under her care and supervision during the times pertinent to her complaint. Though this responsibility was shared with her husband, this does not detract from Ms. Johnstone’s shared responsibility for the care and supervision of her two children. As a result, she satisfied the first leg of the test outlined above for establishing a prima facie case (para. 101). We are likewise persuaded that the union has satisfied the first requirement to establish a prima facie case. Does the childcare obligation engage the grievor’s legal responsibility for that child, as opposed to a personal choice? [56] The second requirement is that the childcare obligation must be part of the individual’s legal responsibility for the child as opposed to a personal choice. Counsel for the union emphasized that Johnstone (2014) held that childcare needs that are protected are those that are “immutable or an “integral component of a legal relationship with the child” (para. 70). We agree. The evidence is clear that the grievor’s children are still of an age where it would be illegal to leave them without care and supervision. Providing care and supervision is not a 24 choice. To leave children unsupervised in the home to pursue work would constitute a form of neglect. [57] Counsel for the college submitted that the facts before us are not sympathetic. He argued that the grievor and her husband have made choices about who provides primary care to the children. If the husband is not able to leave the restaurant on a Wednesday or Thursday then the college should not be required to accommodate him. Like every double-income couple, they have to pay for babysitting. It is the way modern family life works. Moreover, he noted that they did find babysitting. [58] Counsel for the union argued in response that it is important not to conflate Johnstone’s reference to choice in this requirement with the next requirement, which addresses whether there are reasonable alternative solutions to finding childcare. The Federal Court of Appeal gave examples of what a choice constitutes. The examples given by the Court were “trips, vacations and participation in sporting events.” In counsel’s submission, this does not include the choice of where someone lives or the division of childcare. [59] We agree with the union’s submission here that it is important not to conflate the issue of whether the childcare obligation engages the grievor’s legal responsibility with personal choice. What the Court said was that attending dance classes, sports events and the like do not engage the grievor’s legal responsibility to protect and care for a child. The childcare obligations, which the grievor struggled with, were childcare before and after daycare and during her children’s 25 dinner hour when she was required to teach. Certainly, she was legally required to provide care at these times. [60] We also agree with the employer that like every other working couple, they have to pay for babysitting. However, this question is better analyzed under the Court’s third prong of the test, which requires a review of what reasonable efforts the grievor made to obtain third party childcare. [61] Thus, we are persuaded that the union has satisfied the second requirement to establish a prima facie case. Has the grievor made reasonable efforts to meet these childcare obligations through reasonable alternative solutions and that no alternative solution is reasonably accessible? [62] The third requirement to prove a prima facie case of discrimination is that the individual must provide evidence that he or she has made reasonable efforts to meet childcare obligations. This would include calling on family and/or babysitters to provide the care. Counsel for the college argued that the grievor was obligated to find babysitting and was able to find childcare, thus there can be no finding of a prima facie case of discrimination. [63] Counsel for the union argued that Johnstone (2014) made it clear that some “alternatives may be unreasonable in all the circumstances.” In counsel’s submission, the evidence clearly establishes that the grievor made reasonable efforts to satisfy her childcare obligations. When the grievor or her husband could not pick up or drop off their children at school or at their daycare, 26 the grievor engaged a series of babysitters to supplement the full-time daycare. Counsel emphasized we heard evidence that that the grievor encountered significant difficulties in finding reliable childcare in part due to her unpredictable schedule, which changed each term. It was also necessary to hire caregivers that would be responsible in an emergency and be capable of driving a child to hospital, given one of the grievor’s children had significant health issues. [64] We are satisfied that the grievor made reasonable efforts to meet her childcare obligation, which were not easy to maintain, especially given the changes in her schedule from term to term. The grievor testified that one semester she found herself unable to secure regular and reliable childcare for one of the classes that ran until 8 p.m. She made great efforts to find a babysitter but there was no reasonable, reliable person that she could count on in the winter 2013 term. [65] We agree with the college that there is an obligation to engage third party childcare. However, the Court in Johnstone (2014) did not suggest that all possible levels of expense and inconvenience are “reasonable.” The Federal Court of Appeal rejected the employer’s submission in Johnstone (2014) that the test for a prima facie case be limited to cases where it is impossible to delegate childcare duties to a third party, as the college has submitted here. Thus, we find that the effort to find “reasonable” childcare does not require the grievor to incur unreasonable costs or necessitate unpredictable, unreliable childcare. The evidence is clear that the grievor was not able to provide reliable care in the winter term of 2013, even though she tried. Thus, the union meets the third criteria of the test for prima facie discrimination outlined in Johnstone (2014). 27 Does the impugned workplace rule interfere in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation? [66] The impugned rule must be found to interfere with the grievor’s childcare obligations in a manner that is more than trivial. It must not be insubstantial. Counsel for the union submitted that Johnstone (2014) stated an unpredictable schedule could lead to a serious challenge in finding regular and reliable childcare. She submitted that the evidence before us establishes that the grievor’s schedule changed three times a year, with limited notice. The challenge of providing reliable care, such that in one semester she could find no one to cover one of her late classes, except on an ad hoc basis. Counsel urged us to find that this cannot be found to be trivial or insubstantial. Counsel also argued that her childcare costs in addition to daycare costs were not insubstantial. [67] Counsel for the college emphasized the grievor’s personal circumstances: she has a good salary, teaches a course at Western and she is married. He indicated that she and her husband make a good, reasonable income. In his view, they are no different from other families who are working out the balance between work and family obligations. [68] Counsel for the employer noted the college’s evidence on scheduling. The policy indicates that courses can be scheduled between 8 a.m. and 10 p.m. but generally, they are not scheduled past 8 p.m. The policy also indicates professors may have to teach one evening after 6 p.m. but if so they will not start teaching until 9 a.m. the next day. 28 [69] Counsel submitted that the school day when the grievor began work at Fanshawe was between 8 a.m. and 6 p.m. In the fall of 2011, the day was extended to 8 p.m. He noted that professors are not required in their terms and conditions of employment to attend campus on specific hours except for when they teach. Thus, the grievor has great flexibility in deciding how to perform her job. She teaches between six and twelve hours depending on the semester. She knew that her teaching schedule would vary by term when she began her work at Fanshawe. Counsel for the college also noted that over the eleven terms at issue before us, there were only three occasions where the grievor had to teach past 6 p.m. [70] Counsel also argued that no rule had been violated here. There is no change to the fact that the teaching schedule varies with each term. There is no change to the fact that there is short notice on her schedule and it is clear that the grievor must be available to teach from 8 a.m. to 6 p.m. Thus, the only thing that changed was that in 2011 professors were required to teach beyond 6 p.m. possibly one evening a week in the term. It was an immaterial change. It onl y happened three times over eleven terms. [71] We are not persuaded by the college’s submission here. It is true that the grievor may choose to work from home when not teaching. Her work for course preparation and marking and the like are flexible. However, there is nothing flexible in being scheduled to teach between 5 and 8 pm. We are persuaded that scheduling classes past 5 p.m. and certainly after 6 p.m. interfered with the grievor’s childcare obligations in a manner that was not insubstantial or trivial. Further, that there is a policy on scheduling professors to teach between 8 a.m. and 10 p.m. does not lead us to conclude the affect on the grievor is not discriminatory. It is a well- 29 established principle of human rights law that an otherwise neutral rule may have an adverse impact on an employee because of his or her status under a protected ground of the Code. [72] In addition, we are not of the view that there must be a change to the employee’s terms and conditions of employment to find discrimination on the basis of family status. As noted earlier in our analysis, in Power Stream, Arbitrator Jesin said a change in personal circumstances could just as easily lead the employee to seek accommodation from the employer in order to cover childcare obligations. In any case, there was a change in 2011 that meant classes could be scheduled to 8 p.m. Moreover, the union provided evidence that while the grievor had been able to call on her parents-in-law for help in the past, they were no longer able to assist because of health issues. Thus, two changes occurred that made it more difficult for the grievor to meet her childcare obligations. Her workday was extended and two family members that had been able to help in the past were no longer available. [73] The grievor’s children both have health issues, one serious enough to lead to emergency hospitalizations at times. As she testified to us, she cannot rely on a young teenager on an ad hoc basis. She needs dependable mature caregivers who she carefully trains. She was not able to ensure this care, despite great effort to do so in the 2013 winter term, when she was required to teach to 8 p.m. This, in our view, interfered with her childcare obligations in a manner that was more than trivial or insubstantial. The argument that in the eleven terms at issue before us, the grievor only had to teach past 6 p.m. on three occasions does not persuade us that the interference is trivial or insubstantial. Moreover, that there were only three occasions lends itself 30 to the conclusion that, had the college considered her request fully, they might have been able to meet the grievor’s need without undue hardship. [74] As to the union’s submission on the costs of additional babysitting as being substantial, we are not persuaded on this point in this case. As Johnstone (2014) noted, these cases will, like most grievance arbitrations, turn on the facts. In this case, we agree that two working parents of means may have to depend on caregivers in addition to daycare and afterschool care. As the college pointed out, the cost is not the grievor’s alone. It is also her husband’s. Both the grievor and her husband have good paying work. We are therefore not convinced that the childcare costs to the grievor in this case lead to a finding of discrimination on family status. Bona fide occupational requirement or undue hardship [75] The evidence before us is clear that the grievor spoke to her chair about her difficulties in managing childcare when her classes went into the dinner hour. He was sympathetic but advised that there was nothing he could do. In 2010, Mr. Dobson advised the grievor that the college did not approve scheduling exceptions for childcare. Subsequently to filing the grievance before us, she made two scheduling exception requests for the fall term of 2011 and the winter term of 2012. The comment by the grievor’s department chair is essentially the same on both forms. He states that some of his faculty have advised him of the hardship of scheduling early or late classes. He goes on to comment that he has advised that the scheduling committee does not recognize childcare needs as a basis for granting a scheduling exception. The committee denied both the grievor’s requests. 31 [76] In response to the union’s position that the college ought to have investigated the grievor’s requests for exceptions to her work schedule, counsel argued that the only thing that the college would have found out by doing that was that no accommodation analysis was needed. Therefore, he submitted, there had been no procedural breach of the Code. The college was right and appropriate given the broad “blanket” basis of the request. [77] Counsel argued further that the evidence is clear that the college did consider her request. The evidence showed that the committee was concerned that the request asking for a shortened teaching day was for an indefinite period. The evidence also showed that this request was without precedent. The committee was also concerned that the requestor’s spouse was not taking any responsibility for childcare in the few periods of time it might have been necessary to have childcare coverage outside of daycare. Counsel noted that there was evidence that the committee had subsequently granted another faculty member’s request relating to childcare responsibilities. This request came from a single mother with a special needs child requiring medical attention two days in the week outside of the City of London. Counsel noted that the merits of this request stood in stark contrast to the grievor’s request. [78] We are of the view that having asked for accommodation the grievor was entitled to have her request fully evaluated. In Vanhelvoort, supra, the Ontario Human Rights Tribunal considered if the applicant had proven a prima facie case of discrimination on the basis of family status. The tribunal said that it was not necessary to determine this issue, since “the applicant did not sufficiently communicate to the respondent any actual needs related to the grounds of family status for the purpose of triggering the duty to accommodate” (para. 35). The grievor informed 32 her chair of her need for accommodation for childcare and made two formal requests, even though she had been advised that the college did not grant scheduling exceptions for childcare. The college made no meaningful attempt to assess her request. If the college had done this, it would have evidence to show the effort to accommodate and possibly even of undue hardship. [79] However, the committee’s review was cursory at best, and the college’s own witness said that there was no discussion about an accommodation for family status under the Code. He said, “it seemed to them not to be undue hardship for her husband to help.” He said that the committee did not think the grievor’s request was appropriate because she was asking not to work two hours in the workday. There was no follow up with the grievor. No one asked her for more information or for why she might need accommodation. There were no criteria or guideline for the committee to follow for a request for accommodation of childcare responsibilities. The colleges own witness said that the Committee uses an intuitive process to decide. They take each case at “face value.” Thus, we conclude that the grievor asked for accommodation and the college made no meaningful attempt to assess the request. It made assumptions about the grievor’s husband’s availability to cover childcare without enquiring about it. [80] That the college granted an accommodation to a single mother for one term does not persuade us that the grievor’s request was adequately considered. As in requests for accommodation for a disability, there must be a full discussion between employee and employer. There must be proof of the disability and then the needs, as opposed to the wants of employee must be accommodated, absent undue hardship. Likewise, requests for accommodation for childcare responsibilities must be based on evidence, which would, if presented to an arbitrator 33 or tribunal, satisfy a prima facie case. If an employee can show this, then the employer has a duty to accommodate her, subject to undue hardship as provided in Section 11(2) of the Code. [81] We recognize that scheduling for a large college is complicated and many factors must be taken into account. We also know from the college’s witness Mr. Firth that employees with disabilities are accommodated, absent undue hardship in a separate process to the committee of dean’s review of exception requests. It would seem that it should be the same for accommodation for childcare responsibilities under family status. [82] Having found that the union has proven a prima facie case of discrimination against the grievor by the college on the grounds of family status, and given there was no evidence of a bona fide occupational requirement, nor proof that there was any attempt to accommodate the grievor, we hereby grant the grievance and declare that the college has discriminated against the grievor on the basis of her family status contrary to Article 4 of the Collective Agreement and Sections 5 and 11 of the Code. The college is directed to consider any requests by the grievor for accommodation because of family status and work to accommodate her unless to do so would result in undue hardship. We are not prepared to order compensation for the babysitting costs incurred by the grievor for the reasons noted above. With regard to the request for human rights damages, we have decided to remit this issue back to the parties. Should the parties be unable to reach an agreement on this we shall remain seized of this issue and any other issues arising from implementation of this award. 34 [83] Finally, we would like to thank counsel for the college and the union for their able arguments. Dated at Kingston, this 15th day of June 2015 Deborah Leighton ________________________ Deborah Leighton, Chair “Michael Riddell” _________________________ Michael Riddell, College Nominee, Dissenting “Sherril Murray” __________________________ Sherril Murray, Union Nominee, Concurring Dissent I must dissent from the decision of the majority of the Board in this case. In my respectful opinion, based on the evidence presented, the Union has simply not made out a prima facie case of discrimination on the ground of family status. The grievor, a full-time professor at the College, typically teaches at the College between 6 and 12 hours per week over 3 teaching terms for a total of 35 weeks in the calendar year. During these teaching periods she generally has the discretion as to when and where to perform the other work associated with her job. Her teaching schedule varies with each term. The evidence was clear that during her time at the College the teaching day has been from 8:00 am to 6:00 pm, Monday to Friday, although in recent years, due to space constraints from an expanding student population, some classes may be scheduled up to 8:00 pm on Mondays through Thursdays. Each term the College engages in the extremely complicated task of developing a timetable for the delivery of thousands of courses to thousands of students with hundreds of faculty. It is College policy to make every effort not to schedule full-time professors to teach past 6:00 pm more than once per week and where that happens, not to schedule that professor to teach prior to 9:00 am on the following day. The grievor’s teaching schedule never went outside the parameters of this policy. Indeed in the 11 terms reviewed in the evidence, there were only 3 occasions when her teaching hours went past 6:00 pm. This is in stark contrast to the full-shift rotating and irregular schedule faced by the employee in the Johnstone case. The grievor and her husband live together in St. Thomas, Ontario, which is about a 45 minute drive from the College campus in London. They have two children who at t he time of the grievance were 7 and 4 years old, and are now 10 and 7 years old. Although we have no medical - 2 - evidence on this point, the grievor testified that her children had some health issues, most of which had stabilized by the time of the grievance. We did not hear of any occasions in which the grievor’s teaching was impacted by her having to tend to a health issue with one of her children. This is to be contrasted with the challenges faced by parents with special needs children who require daily ongoing care as seen in many of the other cases on this topic. The grievor testified that her husband is the owner/operator of a restaurant in St. Thomas, which is relatively close to the family home, the school and the day care centre. He employs seven people. The restaurant is closed on Mondays, and closes at 3:00 pm on Tuesdays, yet the majority has unquestioningly accepted as a fact the grievor’s adamant assertion that her husband is simply not available to assist with child care at any time. Given the accepted principle that child care is a shared parental responsibility, there is no justification for the grievor’s husband being relieved of all responsibility such that the grievor is being treated in this case as if she were the sole parent. Furthermore, and most importantly in my view, the evidence was clear that child care arrangements appropriate to the grievor’s requirements and to her childrens’ needs were available and utilized whenever the grievor’s teaching timetable conflicted with her childrens’ timetable, even when, on one night per week between 4:00 pm and 8:30 pm during the Winter 2013 term, the grievor testified she had to scramble to get coverage. Indeed, there was simply no evidence that the grievor or her husband were at anytime unable to secure child care such that either of them had to leave work or stay home from work to look after the children. As discussed in the Johnstone case at paragraph 88, the grievor successfully sought and obtained reasonable child care arrangements and was never unable to fulfil her parental obligations. - 3 - I also disagree with the conclusion of the majority that the College did not properly consider the grievor’s requests made, after the grievance was filed, to the scheduling committee under the exception process in the timetabling policy. I note that in her first request for Fall 2011 she asked for no classes to be scheduled before 8 am and after 4 pm, and in her second request for Winter 2012 she asked for no classes to be scheduled before 9am and after 5 pm. These on-line requests included information and assertions similar to what the grievor stated in the arbitration hearing (except that she did not disclose in these requests the times at which the restaurant is closed, nor that she had found appropriate day care/ babysitting when it was required). In my view, the College appropriately considered and declined her request. I do not believe that the Union has made a case for discrimination and accommodation in this case. I would have dismissed the grievance. Dated at Toronto, Ontario this 14th day of June, 2015 “ Michael Riddell ” College Nominee