What Happened

The employee worked as a scheduler. Her schedule was 8:30 a.m. to 4:30 p.m. with earlier morning work on occasion. This was a verbal agreement between the parties. The employee claimed she was allowed to arrive any time before 10:00 a.m. to handle childcare obligations (which the employer disputed). It was agreed that the employer had told her mornings were important to her position. On occasion, the employer had discussed her irregular arrival times with her, and clarified that she was expected to arrive at work for early mornings as required.

The employee went on maternity leave. While on leave, the employee was told that when she returned to work, she would have to arrive consistently at 8:30 a.m. The employee claimed she was unable to secure before-school daycare for her children, and that the employer refused to accommodate her childcare needs.

She sued. She claimed the employer violated employment standards legislation by not reinstating her to her original position, constructively dismissed her by modifying her employment, and discriminated against her based on family status.

The Decision

Her lawsuit was dismissed. The trial judge said the employer did not modify her employment. The company was enforcing her previously agreed schedule because of a real business issue requiring early morning attendance. There was also insufficient evidence of discrimination.

The employee appealed. She argued that flexibility in her start time was a fundamental term of employment based on past practice. This could not be unilaterally modified by the employer without providing her with reasonable advance notice of the change.

The appeal court agreed that the 8:30 a.m. start time was a fundamental term of employment despite previous flexibility by the employer. Based on this fact, it was reasonable for the trial judge to find it was the employee who was trying to change her employment. Not the other way around. No reasonable advance notice from the employer was required in the circumstances.

In another bulletin, we wrote about the trial judge's decision not to pick one of two family status discrimination tests as the correct test. Like the trial judge, the appeal court did not pick a test. The court decided it was not necessary. The employee did not meet either family status discrimination test. Any accommodation efforts by her employer were frustrated because she did not participate and provide necessary information.

Takeaways

Employers can take some comfort from this decision. Occasionally allowing employees flexibility to deal with personal matters does not mean the employer will be unable to enforce agreed employment terms.

This case highlights the importance of applying both family status discrimination tests to request for accommodation. It also highlights a few important best practices that were not followed by the employer. Key employment terms should be documented in writing. The agreed terms of employment should be enforced by employers. Where occasional exceptions are granted, the employer should be clear these are exceptions and not a permanent change.

Note: This a reprint of an article by Justin P’ng of Fasken.