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Family Status Discrimination Leads to Reinstatement
December 8, 2006

An arbitrator recently reinstated a casual employee whose employment was terminated because she refused work to care for her children. The arbitrator concluded that the termination amounted to discrimination on the basis of family status.

Under the collective agreement, casual employees were required to accept both extended and on-call assignments and to maintain “reasonable availability” for work. After finishing a long term assignment, the employee reverted to on-call status because she was having child care difficulties and one of her children had health problems. Her employment was terminated when she refused to accept a shift at 6:00 a.m. because she could not organize child care on short notice.

The arbitrator found that family status discrimination occurs when an employment policy interferes with a “substantial parental or family duty”. Although the employer’s policy was reasonable for most employees, the age and health of the grievor’s children made the requirement to be reasonably available for last minute assignments unreasonable in her case. Because the employer failed to consider the employee’s reasons for refusing the assignment and made no attempt to accommodate her, the arbitrator found the termination was discriminatory and ordered reinstatement.