Monday, May 17, 2010

Alberta Tribunal Addresses the "Great Prima Facie Debate" on Family Status Workplace Accomodation

Donna Seale (as always) has a comprehensive report at Human Rights in the Workplace on an Alberta human rights ruling that requires working parents to reasonably exhaust alternative child care options before an employer will be required to accommodate child care requirements affected by new night shift assignments.

Such alternatives include having other family members stay in the home with the children, or having the children stay overnight with family members, including non-custodial parents.

It is interesting that in family law, the paramount consideration of Canadian courts that determine parental requests for such overnight stays is "the best interests of the children," with concerns regarding predictability, stability and disruption to the children, however trifling, often limiting the weeknight residential time allowed a non-custodial parent.

It is unclear whether the "best interests" test has found, or will ever find its way into human rights jurisprudence, or whether it should. Still, it is worth noting that family courts are far less inclined to permit children to ping-pong between their parents' homes on weeknights than the Alberta Board suggests may be mandatory where night shift duty is assigned.

The case cited by Ms. Seale is a February 2010 decision of the Alberta Arbitration Board in Alberta (Solicitor General Department) v. Alberta Union of Provincial Employees, 2010 CarswellAlta 742.

See: Employee fails to show “absence of reasonable alternatives” for child care, must work night shift

- Garry J. Wise, Toronto

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