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13 November 2019
Employees sometimes need to start or leave work at different times than originally agreed with their employer (eg, because of childcare issues). A recent appellate decision, Peternel v Custom Granite & Marble Ltd, confirms that employer flexibility in granting occasional requests does not always modify the underlying employment contract.
The employee worked as a scheduler. Her schedule was 8:30am to 4:30pm, with occasional earlier morning work. This was a verbal agreement between the parties. The employee claimed that she was allowed to arrive any time before 10:00am to handle childcare obligations (which the employer disputed). It was agreed that the employer had told they employee that mornings were important to her position. On occasion, the employer had discussed the employee's irregular arrival times with her and clarified that she was expected to arrive at work for early mornings as required.
The employee went on maternity leave. While on leave, she was told that when she returned to work, she must arrive consistently at 8:30am. The employee claimed that she was unable to secure before-school care for her children and that the employer had refused to accommodate her childcare needs.
The employee sued her employer, claiming that it had:
The lawsuit was dismissed. The trial judge stated that the employer had not modified the employee's employment. The company was enforcing her previously agreed schedule because of a real business issue which required early morning attendance. There was also insufficient evidence of discrimination.
The employee appealed. She argued that flexibility in her start time was a fundamental term of employment based on past practice. This could not be unilaterally modified by the employer without providing her with reasonable advance notice of the change.
The appeal court agreed that the 8:30am start time was a fundamental term of employment despite previous flexibility by the employer. Based on this fact, it was reasonable for the trial judge to find that it was the employee who was trying to change her employment, not the other way around. No reasonable advance notice from the employer was required in the circumstances.
Like the trial judge, the appeal court did not pick one of two family status discrimination tests as the correct test because it decided that this was unnecessary.(1) The employee failed to meet either family status discrimination test. Any accommodation efforts by her employer were frustrated because she did not participate and provide necessary information.
Employers can take some comfort from this decision. Occasionally allowing employees flexibility to deal with personal matters does not mean that the employer will be unable to enforce agreed employment terms.
This case highlights the importance of applying both family status discrimination tests to requests for accommodation. It also highlights the following important best practices that were not followed by the employer:
(1) Fasken, "Making Sense of Family Status Discrimination", 19 December 2018.
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