Federal Appeal

Human Rights Legislation

Employer ordered to pay $20,000 to employee for its reckless conduct

Employee worked as conductor and her home terminal was Jasper, Alberta. Employee was on laid off status, but was recalled to report to temporary work assignment in Vancouver, British Columbia to cover employer’s shortage of running trade employees at Vancouver terminal. Employee asked for accommodation with respect to her childcare needs, but employer refused to deal with her requests. Employer informed employee that her seniority rights had been forfeited and her employment terminated because she failed to cover shortage in Vancouver. Employee filed human rights complaint alleging employer discriminated against her on basis of family status. Tribunal found that employer had discriminated against employee within meaning of ss. 7 and 10 of Canadian Human Rights Act, on ground of family status by refusing to accommodate her childcare needs. Employer was ordered to pay $20,000 in special compensation to employee for its reckless conduct. Employer applied for judicial review. Judge found that tribunal’s decision was reasonable and application was dismissed. Employer appealed. Appeal dismissed. Employee was mother of young children at time she was called to Vancouver, children were under her care and supervision and she had legal responsibility to ensure that they would be cared for and supervised while she was away at work. Employer failed to provide any useful information to employee about her work assignment in Vancouver that would have allowed her to assess her childcare needs. Requesting that employee move from Alberta to British Columbia to meet work shortage was work-related situation that interfered in manner that was more than trivial with fulfilment of employee’s childcare obligations. Employee met burden of establishing prima facie case of discrimination. Employer had not established that impugned action was bona fide occupational requirement. Employer was not sensitive to employee’s situation. Various forms of accommodation were provided by employer to other employees that were not offered to employee. Employer’s failure to provide any significant information to employee concerning her assignment to Vancouver that could have assisted her in determining her childcare needs was reckless conduct. Compensation tribunal awarded to employee was reasonable.

Seeley v. Canadian National Railway (May. 2, 2014, F.C.A., J.D. Denis Pelletier J.A., Robert M. Mainville J.A., and A.F. Scott J.A., File No. A-90-13) Decision at 225 A.C.W.S. (3d) 195 was affirmed.  240 A.C.W.S. (3d) 431.

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