Winnipeg Free Press - PRINT EDITION

Child-care ruling seen as prod for employers

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OTTAWA -- Employers in Manitoba may have to adjust some shift schedules and working hours to reasonably accommodate the child-care needs of employees after a Federal Court ruling this week.

Federal Court Justice Leonard Mandamin Tuesday upheld a 2010 Canadian Human Rights Tribunal decision that ordered the Canada Border Services Agency to adjust its policies after a border-services officer argued she had been discriminated against based on the fact she had young children.

Stuart Rudner, employment law specialist with Miller Thomson near Toronto, said the decision makes a bold statement about the country's legal landscape.

Disability, gender and religion are no longer the primary basis for human rights complaints, he said, adding family-related issues are bound to gain more prominence in the coming years.

"This is likely the next frontier," Rudner said. "(The ruling) does set the precedent now that confirmed what many of us suspected, which is that employers are susceptible to these complaints."

In the CBSA case in question, Fiona Johnstone, a border-services officer in Toronto, asked to be able to work three specific days a week, 13 hours at a time, because she had not been able to find a child-care arrangement that would accommodate the normal rotating shifts of five days of 8.57 hours of work per day, followed by three days off.

The CBSA said the only way to get fixed shifts was to become part-time and work a maximum of 34 hours a week. That meant Johnstone would be ineligible for benefits, pension, training and advancement opportunities available to full-time employees.

So Johnstone filed a complaint with the Canadian Human Rights Commission in 2004. She argued the employer allowed workers to keep full-time schedules and fixed shifts if it was required for religious or medical reasons but would not accommodate her need for child care.

A witness at the tribunal hearing, accepted as an expert in child care, testified the kind of child care Johnstone needed to accommodate rotating, non-standard and unpredictable hours, including overnight shifts, is not easy to find.

That is certainly the case in Winnipeg, said Ron Blatz, executive director of the Discovery Children's Centre in St. James. He said his centre is one of maybe eight in the city that is open in the evenings and one of three that is open on weekends. One of his parents drives to St. James every morning from East Kildonan to drop off her child because it is the only centre she could find where she could get care in order to make it to work for her 7 a.m. shift.

He thinks this decision will force employers to change how they see their role in the lives of families.

"I don't think employers think much about child care, but now they're going to have to," he said.

How many people this case may affect is up for debate and Blatz said the demand for off-hours care is much lower than the demand for care during standard working hours, Monday to Friday. He has about 65 families that use the extended evening hours. On Saturdays, the centre has never been at full capacity of 35 kids in the 12 years the centre has offered that option.

Victoria Sopik, president of Kids and Company, said she thinks many employers have slowly been coming around to accommodate child-care needs. Her company provides corporate child care to employees of companies who buy memberships in her centres. The centres, including one on Fort Street in Winnipeg, offer all sorts of hours and options for child care, including part-time, off-hours and weekends.

"There was a real switch when companies realized they were the prime beneficiaries, because people would come back to work after maternity leave," said Sopik.


-- with files from The Canadian Press

Republished from the Winnipeg Free Press print edition February 7, 2013 A9

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