Failure to accommodate child-care needs of dad is discriminatory

Arbitrator Norm Jesin in a recent ruling decided that a negotiated change to the shift structure at Power Stream was discriminatory on the grounds of family status because it interfered with a father's child care arrangements set out in his separation agreement with his estranged wife.

The grievors were four fathers employed by Power Stream (a power distribution authority in Vaughan, Ontario). These linemen were all represented by IBEW Local 636. Prior to the 2008 round of bargaining, the collective agreement permitted each employee to choose between 5 days of 8 hours each or 4 days of 10 hours each. Each grievor was in the minority of workers who had chosen the 5 day work week. Two of the grievors were married, one was divorced with teenage childen, one was separated with young children and had a child custody agreement with his estranged wife. In each case, the fathers played an important role in the lives of their children and had chosen the five-day shift for that reason.

In the 2008 round of collective bargaining, the Employer insisted that the Union choose one of the two shift structures for all employees. In the end, this was reluctably agreed to and incorporated in the renewal agreement. The new shift schedule (beginning at 6:30am and continuing to 5pm) began in September 2008.

Arbitrator Jesin identifies the following duties of a parent with respect to his or her children:

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.

However, most parents must work in order to discharge these duties. And so:

It is only natural that these obligations – the obligation to ensure a safe, healthy and happy child and the obligation to work will sometimes be difficult to reconcile. And parents may have to make difficult choices to reconcile their conflicting obligation.

Arbitrator Jesin finds that with respect to the three men who are either still married or divorced with older children, there were no substantial intereferences in the discharge of parental duties enough to warrant a finding of discrimination. However, the fourth case involving the man separated from his spouse with young children, Arbitrator Jesin came to a different conclusion:

Mr. and Mrs. Baddely were able to reach an amicable custody sharing agreement that was negotiated within the constraints of the five eight hour shift schedule. This agreement was in the best interest of not only Mr. and Mrs. Baddely, but their children as well. Mr. and Mrs. Baddely had agreed first that Mr. Baddely would keep the matrimonial home. They had also agreed that they would alternate custody each week. In that way, the children would be able to spend half their time in the matrimonial home and would be able to attend their regular school.

The new schedule materially disrupted this carefully crafted arrangement.

There you have it. Did Arbitrator Jesin make the right call?

The substantial shift in family life documented by the other 3 men did not give rise to a finding of discrimination even though their children were found to have also suffered as a result of the change in shifts. In two cases, the ability of the men's spouses to care for the children was sufficient for the arbitrator to find that there was no discrimination. What does this say about gender equity in contemporary Ontario?

However, the children whose parents were separated are entitled to protection because the terms of the separation agreement were tailored to the old shift rules.

Some would say that this is too restrictive a reading of the human rights code protection.

Others would say that it is too broad.

Read the ruling yourself and tell me what you think.

What is clear is that employers and unions are going to need to consider family arrangements in negotiating collective agreements and dealing with individual accommodations of workers' needs. Otherwise, risk a grievance!