Denial of personal leave for child care not discrimination: Tribunal

Worker took 18 months of maternity and parental leave; unsuccessfully claimed family status discrimination when request for additional 12 months general leave was denied
By Jeffrey R. Smith
|Canadian Employment Law Today|Last Updated: 02/07/2019

A British Columbia worker‘s claim of discrimination based on family status related to her employer‘s refusal to grant her additional leave following parental leave has been dismissed by the B.C. Human Rights Tribunal.

Jana Durikova was employed as a store clerk for the B.C. Liquor Distribution Branch (LDB) of the provincial Ministry of Justice. She was hired in 2007 as a unionized worker with a collective agreement that allowed the option of extended childcare once parental leave had been completed.

In July 2014, Durikova went on maternity leave followed by parental leave. When the leaves were used up after a total of one year, she used the extended childcare option in the collective agreement to take another six months off until January 2016.

At the same time Durikova requested the extended childcare leave in June 2015, she asked LDB’s human resources department about the possibility of taking additional general unpaid leave when the extended childcare leave expired. She was told the unpaid leave was available with the approval of her store manager and the LDB regional manager.

Worker wanted to continue to care for her child at home

Durikova applied to the store manager in August, explaining that she wanted to “take care of family matters ensuring that my family’s health, happiness, safety, financial stability and installation of our values are properly attended to.” The store manager said he had no problems with it and, after some follow-up from Durikova, the regional manager eventually approved her request to file an application. In her application, she stated that the leave was to take care of her daughter — 14 months old by this point —because “children grow so fast.”

However, the LDB’s human resources department denied Durikova’s request on the basis that she hadn’t provided sufficient explanation as to why normal childcare options weren’t available. The LDB determined her reasons for extending her leave weren’t sufficiently family-related and informed Durikova she was expected to return to work on Jan. 24, 2016. Durikova then requested an accommodation due to family status on Jan. 13, 2016.

Durikova’s union filed a grievance against the LDB’s denial of her leave request and Durikova launched a human rights complaint claiming discrimination on the basis of family status. Durikova stated that she and her husband didn’t have “the luxury of an extended family nearby to help with care” and indicated that it would be difficult to teach her child about her heritage and language — she was originally from Slovakia — so she could communicate with relatives. She also argued that her reasons for requesting a general leave of absence were more complex than simply taking care of her child, there were “many emotional and family reasons” for it, the cost of childcare for young children was high, and the denial created hardship for her family. She added that her parental and maternity leave entitlement had nothing to do with her request for general leave.

Durikova also claimed the LDB denied her request because It was concerned about the possibility she wouldn’t return to work after the leave, it would incur costs from her leave — which was already 18 months and would total 30 months if her request was granted — general leaves of absence usually weren’t taken right after parental leave, and it was worried about being bombarded by similar requests.

An arbitrator allowed the grievance, finding that the LDB denied Durikova’s leave without telling her why — that it was concerned about the nature and length of the leave. In addition, the regional manager approved her application for leave based on her circumstances and there was no evidence the LDB considered other factors.

The tribunal noted that family status discrimination was set out in the 2004 decision of Campbell River & North Island Transition Society v. H.S.A.B.C., where it was defined as “when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee.” However, the court in Campbell River specified that there was a high bar in such circumstances and most situations involving a conflict between a work requirement and a family obligation would not be considered discrimination based on family status. This was later demonstrated in the 2014 decision Johnstone v. Canada (Border Services Agency), which limited parental responsibilities worthy of human rights protection to those “that a parent cannot neglect without engaging their legal liability for the child.”

The tribunal found that through most of the process in applying for general leave, Durikova indicated she wanted to care for her child and teach the child her native language of Slovakian as well as English. On her application form, Durikova wrote that she wanted to take care of her daughter. However, none of these reasons qualified as special circumstances about the care of her daughter that made it more than her personal choice to take additional leave or that care for her daughter would be unavailable if she returned to work, said the tribunal.

The tribunal also found that the LDB‘s interference with Durikova‘s wish to be at home with her child through its requirement that she report to work following her parental leave didn‘t cause any real disadvantage or adverse impact to her relationship to her child or her parental responsibilities. It determined that Durikova‘s human rights complaint had no prospect of success and dismissed it.

‘‘It appears clear that Ms. Durikova wanted to stay at home with her child to pass on her culture and language,‘‘ said the tribunal. ‘‘That is a laudable desire. However, it appears to be a choice rather than a substantial family duty or obligation as contemplated by Campbell River.‘‘

For more information see:

• Durikova v. BC Ministry of Justice, 2018 CarswellBC 3148 (B.C. Human Rights Trib.).

• Campbell River & North Island Transition Society v. H.S.A.B.C., 2004 CarswellBC 1012 (B.C. C.A.).

• Johnstone v. Canada (Border Services Agency), 2014 CarswellNat 1415 (F.C.A.).

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