Family status accommodation requests are some of the most difficult faced by employers. Where is the line between an employee's personal preference and a legal right to expect accommodation? Recently, the British Columbia Human Rights Tribunal drew that line and in doing so, provided some eminently practical advice. Three different tests are applied in various jurisdictions (B.C., Ontario and at the Federal level) and so the legal analysis in this B.C. decision is not universally applicable. However, the facts illustrate the reason for the Court's practical advice.
Mr. Suen lived and worked in Burnaby, B.C. and travel was part of his normal work assignments. He was the parent of a four-month-old baby when his employer, Envirocon assigned him to work on a project in Manitoba. When Mr. Suen refused to go, his employer took the position that his employment was terminated for cause. Mr. Suen claimed that Envirocon had failed to accommodate his family status.
The Tribunal found that the assignment did not trigger Envircon's obligation to accommodate, as it would not have resulted in a "serious interference with a substantial parental ... duty or obligation" and closed the decision with these trenchant comments:
Ultimately, not wanting to be away from one's family is not, on its own, a sufficient basis for turning down a work assignment in a job where travel is sometimes required. If it were, employers would be in an untenable position: as Mr. Hope observed, time away from family is always a sacrifice of some kind for anyone. Where travel is required, someone has to go. While nothing turns on it, and notwithstanding that latter point, it seems to me that a practical approach for an employer faced with an employee expressing reluctance in circumstances such as here would be to simply engage in a direct conversation to identify the employee's specific concerns and determine whether a workable solution that satisfies both sides becomes apparent. This would likely be far less costly in terms of time, money, and employee attrition. In this case, for example, Mr. Suen testified that a simple weekend home every couple of weeks would have sufficed. Ironically, accepting Mr. Hope's evidence that the Manitoba Assignment would have been subject to both rotations home and certain budgetary and travel discretion, this would have readily been available. In short, if I accept in full the evidence of both Mr. Suen and Mr. Hope, their evidence converges to reveal that a simple, open conversation would have saved a significant amount of time, energy and resources for both sides.
Keep in mind that these comments were made at the end of four years of litigation, including an appearance at the B.C. Court of Appeal on a preliminary issue and four days of hearing before the Tribunal. Both parties invested substantial time and resources which could have been used far more productively - if only they'd taken the time to just sit down and talk it through.
The Tribunal's full decision can be found here.
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