Flatt v. Treasury Board (Department of Industry)
2014 PSLREB 02
- Before: Augustus Richardson
- Decision Rendered: November 13, 2014
- Original Language: English
An application for judicial review filed in the Federal Court (T-2485-14) and then transferred to the Federal Court of Appeal (A-557-14) was dismissed.
- Admissible evidence –
- Human rights –
- Burden of proof –
- Discrimination –
- Grievance procedure –
- Jurisdiction –
- New issue –
Human rights – Discrimination on the basis of gender or family status – Telework – Duty to accommodate breastfeeding – Establishment of a prima facie case – Preliminary objection to post-grievance evidence – Scope of the grievance
The grievor alleged that her employer discriminated against her on the grounds of sex and family status when it refused her request to telework from home full-time for a year following the end of her maternity leave – the grievor wished to continue breastfeeding – in part due to past and projected staff reductions, and in part due to past problems with alternative work arrangements, the employer reviewed the impact of such arrangements on its operations and decided that given the changes, such arrangements would be restricted to cases involving extenuating circumstances – the grievor's request for full-time telework was refused, and she accepted a period of unpaid leave combined with vacation leave, but the parties continued discussions about other arrangements, such as a daycare closer to her workplace and part-time teleworking – the parties could not agree on the details of an arrangement and reached an impasse with the grievor maintaining her desire to telework five days a week and the employer being not prepared to agree to more than one day, prompting the grievor to file her grievance – she took both leave without pay and vacation leave for several months to meet her needs, but the parties continued to negotiate during this period – the employer objected to the introduction of evidence concerning the discussions that occurred after the grievance was filed – the panel of the Board allowed its provisional introduction, as it might have become relevant in the event that there was a duty to accommodate – the panel of the Board found that the grievance with which he was seized contested the employer's refusal to grant the grievor's request to telework five days per week and not a lesser amount – the panel found that the analogy drawn in the jurisprudence between pregnancy and breastfeeding was problematic – the ability to breastfeed is a physical condition that is an immutable characteristic or incident of gender, but breastfeeding itself is different and is a subset and an expression of a larger complex of factors stemming from the relationship between a parent and an infant – he concluded that breastfeeding was as much if not more of an expression of family status as it was of gender – breastfeeding is not immutable but is a choice – the panel of the Board held that the duty not to discriminate on the basis of family status is triggered when a work commitment has a significant impact on a substantial aspect of an employee's family obligations – the grievor had not made out a prima facie case – the childcare obligation at issue, the responsibility to nourish a child, was engaged, but how a parent fulfills that responsibility is a question of choice – there was no evidence that the grievor's child suffered from any medical condition that made breastfeeding necessary – the grievor had failed to explain why full-time telework was necessary when, in the past, she had accepted it for two days per week – the evidence fell short of demonstrating that the grievor had made reasonable but unsuccessful efforts to find reasonable alternative solutions – in the event that he was in error, the panel of the Board found that the employer had satisfied the obligation to accommodate to the point of undue hardship – the restriction had been adopted in good faith, had been applied to all employees and was the result of a response to workplace changes – despite that, the employer did try to accommodate the grievor, who did not explain why she needed a year of teleworking or why she could not use a daycare closer to her workplace.