Court of Appeal confirms childcare rights

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Two Federal Court of Appeal rulings confirm that employers must be flexible in supporting parents' childcare needs.

The Court upheld the provincial decisions that saw Pearson International Airport border guard Fiona Johnstone and Alberta CN Rail conductor Denise Seeley returned to full time work, paid lost wages and given $35,000 each in damages - the maximum amount for this type of case.

The Johnstone decision, released this week, has similarities to the 2010 Seeley case, with both women having to turn down hours of work after their children were born because of their childcare demands.

Johnstone had to take part-time work, meaning she lost her pension and benefits rights, while Seeley was fired after she turned down work in another city, requesting shifts closer to home.
 
Ottawa lawyer Andrew Raven, who handled Johnstone’s case for a decade, says the decisions send a strong message to employers.
 
“They must take requests for accommodation of child care needs seriously and have a company policy regarding management of these claims,” Raven said.
 
Federal Court of Appeal Justice Robert Mainville, who wrote the decisions in both cases, said that Johnstone and Seeley were responsible for the care of their children and made reasonable efforts to do so when they were at work. Nevertheless he agreed that Johnstone’s variable shifts and Seeley’s transfer made it virtually impossible for them to make suitable child care arrangements.
 
He also specifically noted that employers only have to accommodate essential child care obligations, as opposed to extracurricular activities like sports or dance lessons, which are a matter of personal choice.
 
“Family status is a developing area of human rights law,” employment lawyer Stephen Torscher, from Miller Thomson, said. “Employers must be aware that workplace rules and policies that result in a true childcare problem for employees are protected by human rights legislation and must be accommodated to the point of undue hardship.”
 
Torscher suggested HR leaders review their policies and ensure that they have a process in place to comply with their legal obligations.

The federal Attorney General has until the end of June to file further appeals and is reportedly considering the options.
 

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