The Court of Queen’s Bench of Alberta recently upheld an arbitrator’s ruling that SMS Equipment Inc. (“SMS Equipment”) discriminated against an employee because they required her to work night-shifts. The employee was a single mother of two and requested that she be allowed to work exclusively day shifts so she can care for her children. When SMS Equipment refused, the employee’s union filed a grievance and received a favourable ruling from the arbitrator. SMS Equipment applied for judicial review, but the Court upheld the arbitrator’s decision.
SMS Equipment provides equipment and equipment services to construction, mining and petrochemical industries in Fort McMurray, Alberta. In 2012, Ms. Cahill-Saunders answered a job advertisement by SMS Equipment, looking for a first-year welder apprentice who could work “seven days on and seven days off with rotating tours of days and nights.” After her first night shift, Ms. Cahill-Saunders requested that her work schedule be changed to exclusively day shifts because she was finding it “a bit difficult” to care for her children while working night-shifts.
The arbitrator made the following rulings: (1) that “family status” in the Alberta Human Rights Act (AHRA) includes childcare responsibilities as a prohibited ground of discrimination; (2) that SMS Equipment’s refusal to change Ms. Cahill-Saunders’ work schedule amounted to prima facie discrimination; and (3) that SMS Equipment’s policy to require their employees to work night-shifts was not a bona fide occupational requirement.
In the course of the judicial review, SMS Equipment argued that the arbitrator incorrectly relied on decisions from other jurisdictions in support of the ruling that family status includes childcare responsibilities. The judge found that the arbitrator’s ruling was in no way inconsistent with the definition of “family status” under section 44(f) of the AHRA, and that “I conclude that the Arbitrator’s determination, that the term “family status” in the AHRA includes childcare responsibilities, clearly falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law, and his written reasons demonstrate the existence of justification, transparency and intelligibility within the decision-making process.”
SMS Equipment further argued that the arbitrator’s decision was unreasonable because, at one point in the arbitrator’s reasons, s/he said: “this is not a case about self-accommodation.” SMS Equipment argued that this comment suggests that the arbitrator failed to apply the proper legal test used to establish prima facie discrimination based on family status, which requires an inquiry into whether the aggrieved party “has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible…”
SMS Equipment argued that Ms. Cahill-Saunders’ failed to make appropriate self-accommodation efforts because she did not pursue the fathers of her children for support or attempt to secure childcare benefits from the government. Upon review, the judge found that the arbitrator’s comment was taken out of context. The reasons provided by the arbitrator suggested that s/he did in fact find that Ms. Cahill-Saunders fulfilled her duties of self accommodation, and that there was nothing further she could have done to prevent the adverse effect of SMS Equipment’s policy on scheduling.
SMS Equipment further argued that the failure to consider Ms. Cahill-Saunders’ lack of self-accommodation efforts led the arbitrator to wrongly conclude that SMS Equipment’s night-shift rule was not bona fide occupational requirement. The judge found that because SMS failed to provide any evidence of undue hardship, Ms. Cahill-Saunders’ lack of mitigation efforts would not be enough to overturn the arbitrator’s decision. The application for judicial review was dismissed on all issues.
Part of the reason that SMS Equipment was unsuccessful on this judicial review has to do with constitutional law, which was not discussed in this blog but was discussed in some length in the actual decision. In order to overturn the arbitrator’s decision, the judge in this case had to find it to be “unreasonable” in some respect. This is a high burden and not easily discharged. This is why it is so important to put your best foot forward at the arbitration stage, especially when it comes to introducing evidence. Failing to do so may result in a loss and it will be much more difficult to make your case on an application for judicial review.
It is not clear why SMS Equipment was unable to provide any evidence that required their employees to work night-shifts was a bona fide occupational requirement. Doing so probably provided them with their best chances of success because the remaining issues in this case favoured Ms. Cahill-Saunders. As the judge noted, “The extent of the Grievor’s self-accommodation efforts might have been found insufficient had the Employer provided some evidence in support of its rule, or some evidence of undue hardship, but there was no such evidence from the employer.” In passing, the judge also noted that SMS Equipment had allowed other employees to work exclusively night shifts and they could not provide a reason for allowing Ms. Cahill-Saunders to do the converse. This is especially conspicuous given that SMS Equipment could have had one of the night-shift employees cover for Ms. Cahill-Saunders.