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Family Responsibility Leave to Care for “Child” means “Minor” under Employment Standards Act
October 15, 2008

The BC Court of Appeal has clarified the application of Family Responsibility Leave under Section 52 of the Employment Standards Act. Under the ESA, employees are entitled to five days of unpaid leave each year to meet responsibilities related to the health, care and education of a “child” in their care, or the health or care of a member of their immediate family.

An employee requested family responsibility leave to relocate his 22 year old son from the University of Alberta in Edmonton to Terrace BC for summer employment. The employer denied the leave under the ESA, but allowed the employee paid leave under the collective agreement. The union grieved and an arbitrator upheld the grievance, finding that relocation of the employee’s adult son met the statutory requirements for the leave. The employer appealed the arbitrator’s decision to the Court of Appeal.

The Court found that the word “child” in this context means a person under the age of 19. The Court rejected the union’s contention that an employee’s subjective belief that he has a “responsibility” in a particular circumstance is sufficient to ground the leave entitlement. Rather, the Court applied an objective standard, in which a “responsibility” under the statute is something that a reasonable person, in the same circumstances and having the same cultural background as the employee, would regard as a familial duty.

This case provides much needed guidance to employers in dealing with requests for family responsibility leave under the Act.

(Click here for link to decision)