GSB#2009-0184, 2010-0383

UNION#2008-5107-0018, 2010-5107-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Thompson)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Richard Brown

Vice-Chair

FOR THE UNION

Val Patrick Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Justin Diggle Liquor Control Board of Ontario Counsel

HEARING

January 18, March 1, April 19, August 20, September 21 & 28, 2012.

Decision

1Lee Thompson filed three grievances dated September 1, 2008, March 15, 2010 and August 27, 2010 respectively. The primary motivation for these grievances is the employer’s refusal to transfer him from Toronto to Brampton where he lives. Mr. Thompson also claims he should not be required to work on Saturdays. At the conclusion of the grievor’s evidence, the employer brought a non-suit motion seeking dismissal of his grievances.

2The union contends the grievor is entitled to relief from Saturday work as an accommodation under the Human Rights Code based upon both family status. In particular, the grievor submits he is required to care for his six-year old daughter on Saturdays. The union also claims the grievor is entitled to be transferred to Brampton as an accommodation based upon both family status and disability. In particular, the grievor asserts commuting by car from Brampton to Toronto aggravates his groin injury. He also contends the extra time spent commuting unduly interferes with his ability to care for his 6 year-old daughter and elderly parents. In addition to seeking accommodation, he claims his transfer requests have been denied as a reprisal for his actions in filing other grievances, launching human rights complaints and raising concerns about health and safety.

3Mr. Thompson testified about a number of events occurring between 2001 and the summer of 2006. The employer objected to this testimony on the grounds that these events were addressed by a settlement date July 10, 2006. The union concedes the settlement precludes the grievor from obtaining further relief for any harm suffered before July 10, 2006. The union relies upon events preceding that date solely for the purpose of proving the employer’s subsequent denial of a transfer was motivated in part by them.

4Five hearing days were devoted to the grievor’s testimony and a vast number of exhibits were filed. I have carefully reviewed this evidence. Rather than recounting all of it, I have distilled from it the most pertinent parts.

I

5The grievances were filed when Mr. Thompson was working at store 426 near the intersection of The Queensway and Islington Avenue in Toronto. On March 21, 2011, he was transferred to store 362 near the intersection of Albion Road and Kipling Avenue. Of all the stores in the Toronto District, 362 is the one closest to Brampton.

6The grievor’s most recent address on file with the employer is 2 Moonlight Place in Brampton. The distance from this address to store 362 is 15.7 kilometers by road. When the Moonlight Place address was first put to the grievor in cross-examination on April 19, 2012, he replied it was his parents’ home and also the address to which his mail was delivered, but not where he actually lived. He said his residence was to the north-west of Moonlight Place in Brampton, but he refused to provide the exact address. Allowed time to reconsider, the grievor then contradicted himself by saying he had in fact lived at 2 Moonlight Place since April of 2011, adding that he moved back and forth between that location and other properties owned by his family. He declined to provide the addresses of the other properties. At the hearing on August 20, 2012, the grievor reported his parents had sold their house in Brampton and he would be moving to Caledon with them. At the hearing on September 21, he declined to give his specific address, saying only it was in the northwest corner of Brampton.

7For at least part of the relevant period, Mr. Thompson has held a second job. He mentioned this job in a letter to the employer, dated December 9, 2008, in relation to caring for his mother. Asked about his second job in cross-examination, he declined to say where he was working. The grievor admitted having a night job with the Ministry of Transportation “a long time ago” but he could not recall whether he still had that job in 2008.

II

8Mr. Thompson testified his commute to work has aggravated by a groin injury suffered in June of 2008 when he working at store 426. A medical note dated July, 19, 2010, signed by Dr. A. Kachooie, states the grievor is “unable to sit or drive greater than thirty minutes.” The grievor was unable to recall when this note was presented to the LCBO but the employer admits receiving it no later September or October of 2010. In an email dated February 13, 2011, the grievor requested a transfer to Brampton based on his travel restriction. When testifying, he conceded this email was the first written request for a transfer; he claimed there was an earlier verbal request, without specifying its date.

9The regional director, Bob Clevely, wrote to Mr. Thompson on March 2, 2011 saying he would be transferred to store 326. The letter notes this store is 15.7 kilometers from the grievor’s residence as indicated by the address on file with the LCBO. He began working there on March 21.

10According to the grievor, his commute to this location takes more than thirty minutes. He did not say how much more. He testified about moving to store 326 under protest, because what he really wanted was a transfer to Brampton. Yet in an email dated March 8 he thanked the employer for his transfer to store 326.

11During cross-examination, employer counsel suggested to Mr. Thompson that prior to the hearing he had not advised the employer of any medical problem associated with his commute to store 362. The grievor replied he had informed the WSIB. Asked again about informing the employer, the grievor was unable to name anyone at the LCBO who had been told.

III

12In relation to his parents, Mr. Thompson initially sought a transfer to care for his mother whose age he gave as “64 or 66.” He first made this request in an email dated October, 22, 2008 when she was scheduled for chemotherapy treatment for breast cancer. The grievor requested a transfer to Brampton to enable him to escort his mother when she underwent treatment and to provide home care. Mr. Clevely responded eight days later, seeking medical information. The grievor provided two redacted medical reports on November 23. Two days later Mr. Clevely set out four questions to be answered by the mother’s doctor: three relating to the location and timing of her chemotherapy; and the fourth relating to the grievor’s role in her treatment regime and home care. Mr. Clevely also encouraged the grievor to investigate home care provided by community care access centers. By letter dated December 9, the grievor provided his own answers to Mr. Clevely’s questions, noting his mother was scheduled for treatment every 21 days and he provided “primary care” to her at home. He also stated she had refused to utilize services provided by community care access centers.

13By letter dated December 29, Mr. Clevely denied the transfer request but offered other forms of accommodation: granting time off every twenty-one days, with pay if the grievor elected to use one of his six days per year of “E leave”; and scheduling him to work in the afternoon so he could care for his mother in the morning. The grievor found this offer unacceptable because working an afternoon shift would have interfered with picking up his daughter from day care. He testified the employer was aware of his daughter’s situation, but he conceded not having specifically told the employer why he found its proposal unacceptable.

14Mr. Thompson testified his mother’s cancer is now in remission but she is still in need of home care. He testified about taking her to appointments, looking after her banking and preparing her meals. No medical documentation relating to the mother’s state of health post-chemotherapy was provided to the employer and none was entered in evidence.

15On the first day of hearing, Mr. Thompson testified his father suffered from diabetes and was too frail to care for his wife. As the hearing progressed, the grievor reported his father had recently suffered two strokes and was also in need of care. The grievor equivocated about his father’s age, one day saying he was 80 and another day giving his age as 74. During examination-in-chief, Mr. Thompson said his father was “retired.” In cross-examination, the grievor used the adjective “semi-retired” but then adopted the description given earlier when reminded of it. No medical documentation concerning the father’s health was provided to the employer nor was any entered in evidence.

16In cross-examination, Mr. Thompson admitted to having three siblings: a sister who had moved back to live with the parents because of their poor a health; a brother who also stays with them; and another sister who resides in Woodbridge. Mr. Thompson made no mention of any parental care offered by his siblings nor did he offer any reason why they were unable to assist in providing such care.

IV

17Mr. Thompson also seeks a transfer because his end-of-the day commute from Toronto has delayed him in picking up his six-year old daughter from after-school care. He testified about incurring extra day-care fees, saying the day-care was no longer used and his daughter was being looked after by the grandmother of one her friends. Mr. Thompson also seeks every Saturday off in order to care for his daughter. The employer contends the grievor made no claim in relation to his daughter before the commencement of these proceedings, something he denies.

18Mr. Thompson contends his wife is unable to look after their daughter at the times in question. On the first day of the hearing, he testified his wife was a part-time nurse in a dialysis unit, regularly scheduled to work either 5:30 a.m. to 2:00 p.m. or 3:00 to 11:00 p.m. and often called on short notice for extra hours. He also stated “her department” works on Saturday without mentioning how often she worked that day. On a subsequent hearing date, he testified his wife had secured a full-time job. He did not specify her full-time hours of work either during the week or on the weekend.

19The grievor declined to provide his wife’s residential address or to identify her employer. He also refused to give the name of his daughter’s school. He was not asked about the name and location of her day-care or baby-sitter, but it seems doubtful he would have been willing to provide this information if asked.

20The grievor’s work schedules at store 362 between March 21, 2011 and April 21, 2012 were entered in evidence. According to these documents, he was scheduled to work 23 Saturdays during this period. Faced with these schedules, Mr. Thompson commented days actually worked do not always correspond to days scheduled, but he did not identify any specific discrepancies.

V

21Mr. Thompson contends he was denied a transfer in retaliation for asserting his rights in varies ways. The grievor testified about reporting health and safety concerns to the Ministry of Labour several times. In April of 2009, he filed with the Human Rights Tribunal of Ontario a complaint related to the denial of his requests for a transfer to Brampton as well as other matters. It is unclear whether he has made additional human rights complaints. According to the grievor, he has filed so many grievances that he cannot remember all of them.

22At least one of those grievances related to the denial of a request to be transferred to Brampton because of death threats made to him and vandalism of his car at a series of Toronto stores where he worked between 2002 and 2005. (He attributed these events to his role in identifying a customer and testifying against that person in court.) The grievor was eventually transferred to store 426 in the west end of Toronto. During examination in chief, he testified a district manager, Myron Tymochko, told him there were no black people living in the vicinity of this store. (Mr. Thompson is black as was the person suspected of harassing him.) In cross-examination, the grievor conceded Mr. Tymochko did not actually mention blacks, saying instead the type of gang member bothering the grievor did not live there. Mr. Thompson grieved his transfer to store 426 and that grievance was one of those resolved by the settlement reached on July 10, 2006.

23According to Mr. Thompson, he was told before the transfer to store 426 that this location would be better for him because the day shift started at 8:00 a.m. and ended at 5:00 p.m. While working there he initially took only thirty minutes for lunch and was allowed to leave at 4:30. Then a new district manager altered the day shift to run from 9:00 a.m. to 6:00 p.m. and refused to permit the grievor to leave early if he took a shorter than normal lunch break.

24The grievor testified he was under a medical restriction against climbing stairs throughout most of his time at store 426 because of his groin injury. According to him, despite this limitation, he was required to climb stairs every day at store 426, to reach the lunchroom or washroom in the basement, to retrieve stock from the basement, or to visit the office upstairs. In response to this claim, the employer produced 9 medical reports by the grievor’s doctors outlining his restrictions. These reports do indicate for an extended period he was not to climb ladders but most do not preclude stair climbing. There is a prohibition against stair climbing in a report dated July 28, 2008 issued before the grievor returned to work post-injury. A report dated September 9 indicates he was still totally disabled. There is no restriction on stair climbing in the next report issued on September 18 and indicting the grievor was able to work his regular hours. A report dated April 30, 2009 has a check in the box for “no stair climbing” but no check in box for “no ladder climbing”, apparently treating stairs as more onerous than ladders, a distinction that is counter-intuitive. A report issued by the same doctor just over a week later, on May 8, allows stairs but not ladders. Four subsequent reports state the grievor could climb stairs at his “own pace.” Viewed as a whole, this medical evidence indicates there was no restriction on stair climbing throughout almost all of the time the grievor worked at store 426.

25Mr. Thompson testified about overhearing his district manager, Scott Tranton, describe him as a “trouble maker” who had cost the LCBO a lot of money. He also said Mr. Tranton was “always poking fun” about him costing the LCBO money by finding safety issues.” The grievor testified most of his store managers over the years have made comments “in fun” about how the LCBO would like to get rid of him.

26During examination in chief Mr. Thompson testified Mr. Tranton told other employees that the grievor was responsible for the termination of an arrangement whereby they had been permitted to buy twenty-four cans of beer for twenty dollars. The grievor also testified a store manager, Tony Recchi, accused him of stealing ten thousand dollars worth of beer. In cross-examination, the grievor conceded he had not himself heard the comments allegedly made by Messrs. Tranton and Recchi, having been told about them by fellow workers. This hearsay evidence is not sufficient to prove such comments were made.

27The employer entered in evidence the grievor’s six most recent performance appraisals covering the period from July 2005 to June 2011. His overall performance rating throughout was “solid” which is the mid-point on a five-point scale. With respect to safety, in most years he received a rating of “superb” which is the second highest possible; his rating for the remaining two years was “solid.” All appraisals contain only positive comments about his work as health and safety representative. These appraisals were completed by the store manager and co-signed by the district manager, three of them being co-signed by Mr. Tranton.

28The grievor testified in order to be accommodated he had to “jump through hoops and climb mountains” as well as endure repeated refusals, even though the same was not required of other employees. According to the grievor, the employer took a “ridiculous” amount of time to respond to his accommodation requests. In cross-examination, he was asked about timelines relating to a request made not to work nights because of a problem with his vision. This request was initiated in an email to Scott Tranton dated November 7, 2008 along with a very brief medical note stating he had sub-optimal vision at night. By letter dated November 12, Mr. Tranton sought additional medical information, offering to reimburse the grievor for a “reasonable billing.” A subsequent medical report, received by the LCBO on December 18, stated the grievor’s “eye condition does not preclude him driving day or night with or without glasses.” Four days later the grievor was informed that his request for accommodation had been denied.

29The grievor named six other employees who were allowed to transfer to a store in another district. Paula Munoz is a casual employee who retained her casual status when she changed districts. This transfer was made pursuant to a recent amendment to the collective agreement recording the parties’ “general intention” that “once per calendar year, a casual employee in Retail Stores will have the right to request a transfer to another location, province wide … Transfer requests will be considered by the employer.”

30The other five employees held permanent full-time status like the grievor. Three of them applied for a posting to fill a vacancy and were awarded the position posted: they are Len Santagato, Barry Nolan and Tim Caney. The fourth, Irwin Parker, was transferred on a temporary basis, for six months, as a result of the settlement of a grievance. The fifth requested an out-of district transfer based on concern for the physical safety of her children. She was transferred to another district, but not to the district she initially requested. The parties agreed I should not record her name for reasons of personal privacy.

VI

31The standard to be applied when deciding a motion for non-suit is set out in Ontario (Ministry of Attorney General) and Ontario Public Service Employees Union, [2002] O.G.S.B.A. No. 54, where I wrote:

8. In the case at hand, I must decide the motion for non-suit as well as serve as the trier of fact. At this stage, my task is to determine whether the evidence presented could be sufficient to lead me to rule in favour of the union, if I assumed its witnesses to be credible and drew in its favour all inferences reasonably supported by direct evidence.

9. It is not logically possibly to make this determination without taking into account the applicable standard of proof which is on the balance of probabilities. The question to be decided is whether I could rule that the union has proven its case on the balance of probabilities, if its witnesses are believed and it is granted the benefit of all reasonable inferences. The decision-making process on a motion for non-suit cannot ignore the standard of proof, but this process entails an application of that standard which differs markedly from the way it would be applied after both parties had closed their case. At that point, in determining whether the union had proven its case on the balance of probabilities, I would scrutinize the credibility of witnesses, and I would not draw inferences so as to resolve doubts in favour of the union, because the benefit of doubt should not be granted to the party bearing the onus of proof.

10. Counsel for the employer contends no weight should be given to the evidence of a witness on a point about which he or she has provided contradictory accounts. …I accept this as being the correct approach to a contradiction in the testimony of a witness.

This standard has been subsequently applied by this Board in a number of decisions, most recently in Ontario (Ministry of Finance and Ontario Public Service Employees Union, [2010] O.G.S.B.A. No 125.

32The union bears the onus of proving the employer denied the grievor’s transfer request as a reprisal for the ways he has challenged management. In relation to accommodation, the union bears the onus of establishing a prima facie case of discrimination. (If a prima facie case was established, the onus would then shift to the employer to demonstrate accommodation would entail undue hardship.) My task at this stage is to determine whether union has presented sufficient evidence where it bears the onus of proof.

VII

33Has the union presented sufficient evidence to establish a prima facie case of discrimination in relation to the grievor’s request for a transfer based upon his groin injury? Prior to the hearing the employer believed he lived at 2 Moonlight Place because that was the most recent address he had provided. The letter transferring him to store 362 stated it was 15.7 kilometers from 2 Moonlight Place. I note a person travelling at an average speed of 32 kilometers per hour would complete this commute in just under 30 minutes. It is unclear whether the grievor ever commuted to this store from Moonlight Place, as he gave contradictory evidence about living there. In any event, there is no evidence he informed the employer that commuting from that address to store 362 took more than 30 minutes. Accordingly, I conclude there is not sufficient proof that the grievor was discriminated against on the ground of disability before the hearing commenced, while the employer reasonably believed he resided on 2 Moonlight Place.

34Mr. Thompson is not now residing at that address. The grievor testified he currently resides in the northwest corner of Brampton but he repeatedly refused to reveal his current address. The employer argued the grievor’s refusal to give a specific address renders his testimony about where he now lives inadmissible, because without an address the employer is effectively precluded from verifying his claim. I agree. Each party to an adversarial process like this is entitled to answers to pertinent questions that allow it to probe the veracity of evidence relied upon by the party opposite.

35Not knowing where the grievor currently resides, I conclude the union has failed to prove the commute from his residence to store 362 takes more than thirty minutes. It follows there is not sufficient evidence to establish a prima facie case of ongoing discrimination.

VIII

36In relation to the grievor’s request for accommodation to care for his daughter and parents, the employer cited a number of cases dealing with discrimination based on family status: Power Stream Inc. and International Brotherhood of Electrical Workers (2009), 186 L.A.C. (4th) 447 (Jesin); Alberta (Solicitor General) and Alberta Union of Public Employees (2009), 2010 CanLII 98263 (AB GAA), 192 L.A.C. (4th) 97 (Ponak); Customs and Immigration Union and Alliance Employees Union (2011), 2011 CanLII 70608 (ON LA), 205 L.A.C. (4th) 343 (Allen); Ontario (Ministry of Correctional Services) and Ontario Public Service Employees Union, [2012] O.G.S.B.A. No. 38; Devaney and ZRV Holdings Limited and Zeidler Partners Architects [2012] O.H.R.T.D. No. 1571.

37The law in this area is of recent origin and continues to evolve. Some decisions have held there is a prima facie case of discrimination, requiring accommodation to the point of undue hardship, only where the denial of accommodation would result in serious interference with a substantial family obligation to a child or other family member. Others have concluded a prima facie case is made out whenever the denial of accommodation has any impact on the provision of family care. These conflicting schools of thought were reviewed by Arbitrator Jesin in Power Stream:

49. The B. C. Court of Appeal decision in Campbell River certainly suggests that not all adverse impacts are discriminatory. Indeed, the Court clearly stated that only a change in an employer rule which seriously interferes with a substantial family obligation is discriminatory.

50. The decisions [of the Canadian Human Rights Tribunal] in Hoyt v. Canadian National Railway and [of the Federal Court] in Johnstone v. Attorney General of Canada do not, on their face, restrict the degree of adverse impact which may be found to be discriminatory. Indeed, the tribunal in Hoyt and the Federal Court, in Johnstone, both expressly rejected the restriction espoused in Campbell River. At paragraph 120 in Hoyt, the tribunal stated:

120 With respect, I do not agree with the Court's analysis [in Campbell River]. Human rights codes, because of their status as "fundamental law", must be interpreted liberally so that they may better fulfill their objectives. ... It would in my view, be inappropriate to select out one prohibited ground of discrimination for a more restrictive definition

51. In Johnstone, the Barnes J. quoted this criticism of Campbell River at paragraph 29 of his judgment and then stated the following:

In my view the above concerns are valid. While family status cases can raise unique problems that may not arise in other human rights contexts, there is no obvious justification for relegating this type of discrimination to a secondary or less compelling status: see ONA v. Orillia Soldiers Memorial Hospital (1999), 1999 CanLII 3687 (ON CA), 169 D.L.R. (4th) 489 (Ont C. A.) ... I would also add that to limit family status protection to situations where the employer had changed a term or condition of employment is unduly restrictive because the operative change typically arises within the family and not in the workplace (e.g. the birth of a child, a family illness, etc.). The suggestion in Campbell River, above, that prima facie discrimination will only arise where the employer changes the conditions of employment seems to me to be unworkable and, with respect, wrong in law.

52. In rejecting the test set out in Campbell River, neither the Hoyt case nor the Johnstone decision suggests an alternate test to limit the type of adverse impact on family obligation that would result in a finding of discrimination. In Hoyt although the requested accommodation was only for three days, it was clear that no form of self accommodation would have allowed the Claimant to perform the work. That is not necessarily the case in Johnstone where the claimant did not wish to assume additional child care costs which would have allowed her to work additional hours. These cases along with Mr. Shime's decision in OPSEU suggest that any employer action which negatively disadvantages an employee because of his/her family obligations is prima facie discriminatory.

53. In Canadian Union of Public Employees, arbitrator Christie expressed the view that the Hoyt [and] Johnstone ... decisions go too far. Indeed, at paragraph 121 of his decision he expressly disagreed with the proposition that any employer action that negatively disadvantages an employee because of his or her family situation is prima facie discriminatory. Instead he adopted the approach of the B.C. Court of Appeal as espoused in Campbell River. In dismissing the grievor's claim in the case before him, Christie stated the following at paragraph 139:

The Employer did not change a term or condition of employment. The Grievor sought a change in his employment, as it was his right to do, but it was not imposed on him by the Employer. The interferences that would have resulted in the Grievor's marital and family obligations from a move to Halifax, while difficult for all concerned, were not comparable to the difficulties faced by Ms. Howard in Campbell River.

54. In reviewing these cases I do find it problematic that cases such as Hoyt [and] Johnstone ... suggest that an employer action which has any negative impact on a family or parental obligation is prima facie discriminatory. It is particularly problematic as these cases do not attempt to define what a parental or family obligation worthy of protection may be. ...

55. But I do not think that every conflict between a work obligation and a parental obligation must be accommodated by the employer. More importantly, I do not think that every such conflict should give rise to a finding of discrimination such that an inquiry should be conducted over whether the employer should accommodate the conflict. As a simple illustration, where a collective agreement provides for mandatory overtime, I would not find an employer to violate s. 5 by requiring an employee to perform such overtime on an evening in which the employee was scheduled to attend some activity with his/her child, although the activity may have been scheduled well in advance. To find discrimination in every such circumstance of adverse effect would freeze the employer's ability to act to meet its economic needs as virtually every action could have some negative effect on the parental duties of one employee or another. On the other hand the requirement to perform such mandatory overtime would clearly have to give way if the employee were required to attend to some medical need of the child's or if the employee's caregiver was unexpectedly unable to attend to the child.

38Arbitrator Jesin in Power Stream adopted the test applied by the British Columbia Court of Appeal in Campbell River, a test requiring serious interference with a substantial family obligation in order to establish a prima facie case of discrimination. The same approach was taken in Alberta (Solicitor General), where Arbitrator Ponak noted the conflicting decision of the Trial Division of the Federal Court in Johnstone was sustained by the Federal Court of Appeal, 2008 FCA 101, 2008] F.C.J. No. 427, but with the appeal court stating “we express no opinion on what the correct legal test is.”

39In my view, the correct test is the one first enunciated by the Court of Appeal in British Columbia in Campbell River and subsequently applied by arbitrators Christie, Jesin and Ponak. There can be no finding of a prima facie case of discrimination, based on family status, unless there is serious interference with a substantial family obligation.

40This test requires an employee seeking accommodation to demonstrate he or she was not able to meet a family obligation by reasonable means other than accommodation in the workplace. In Power Stream, Arbitrator Jesin wrote:

62. I accept that it is appropriate for employees to make some efforts at self accommodation before making a claim of discrimination. But employees should not be asked to make choices which are unreasonable in all the circumstances before a finding of discrimination can be made. As an example, counsel suggested that the some of the grievors could have sold their homes and moved closer to the workplace so that they could then find the time to fulfill their obligations. The problem with that is that under the prior schedule there was no problem with where any of the grievors lived. They adjusted themselves to the prior schedule by finding affordable homes close enough to the workplace to allow them to fulfill both their work and parental obligations. It is in, in my view, unreasonable to expect that they should relocate at considerable expense and disruption to their families before the presence of discrimination can even be considered. On the other hand, it would indeed be reasonable to expect an employee faced with the grievors' new schedule to at least consider and investigate alternate day care options if existing day care will not accommodate the grievors' schedule.

Mr. Jesin went on to conclude there had been no discrimination against two employees who were able to meet parental obligations by sharing duties with their spouses. He noted “this is what families do every day.”

41Arbitrator Ponak in Alberta (Solicitor General) ruled an employee seeking accommodation is the party bearing the onus of proof as to whether family duties can be met in some other way, without workplace accommodation. He wrote:

69. With respect to the night shift, in order for the Board to conclude that there was a serious interference with the Grievor's parental obligations, the Board needs to be satisfied that reasonable alternatives for caring for her son at night were not available to the Grievor. In this sense, we view the evidentiary burden for establishing a prima facie case for family status discrimination as analogous to the burden on employees asking for accommodation on the basis of disability. Such employees have the onus of first establishing, through appropriate evidence, that they have a physical or mental condition that requires accommodation in their work setting. In the case of family status, the employee also bears the onus of providing sufficient evidence of the absence of reasonable alternatives for care.

70. Based on the evidence, the Board has concluded that the Grievor has not established that reasonable alternatives for night time care for her son were unavailable. With respect to such care, there are two options. One option is to have the Grievor's son sleep elsewhere on the nights that the Grievor is at work. The evidence showed that the Grievor's ex-husband was able to provide shelter and care for between one-third and two-thirds of the nights the Grievor worked, depending on the week involved, and that the Grievor was comfortable with her son staying at her ex-husband's home. When her ex-husband was unavailable because of his own schedule, her son could stay with relatives. The Grievor did not like this option because she considered it disruptive and it left her son unhappy and anxious.

71. A second option would be to arrange to have someone stay at her house on the nights she worked. According to the Grievor this was difficult to arrange. While the Board accepts that arranging night care in one's home is not simple, few details were provided as to why this was not a reasonable alternative. If her mother and other relatives could not stay over, was it not possible to hire someone to provide the care? Was it a cost issue? The Board was provided with no information on these questions.

72. In short, in the current case there appear to be two alternatives for the care of the Grievor's eleven year old son on the 10 to 20 nights per year that her ex-husband was unavailable. One alternative was to have her son sleep over at a relative. The Board accepts that the Grievor's son was unenthusiastic about such an arrangement, but there was insufficient evidence to show that this option would negatively affect her son's well being. The other potential option, if the Grievor was not prepared to have her son stay with relatives, was to hire someone to stay in her home. There was no evidence as to why such an option was either not available or, if available, so expensive as to be unreasonable.

IX

42In the context of the employer’s non-suit motion, how does the legal framework relating to family status apply to the grievor’s request for a transfer to care for his parents? The crux of the union’s argument is that the extra time spent commuting to Toronto—i.e. time in excess of that required to travel to a store in Brampton—interferes with the grievor’s availability to care for his parents. Not knowing his residential address, I am unable to determine either how long it now takes him to commute to Toronto or how long it would take him to commute to a Brampton store. In other words, the union has not proven exactly how much extra time is required to commute to Toronto.

43What about reasonable alternative ways to provide daily care to the grievor’s parents for any extra time the grievor does spend commuting? There is no evidence as to why such care cannot be supplied by his siblings, two of whom appear to live with their parents. The parents apparently have elected not to investigate community care services, something they are not obliged to use, but the employer should not be required to transfer the grievor if these services would satisfy their needs. There is no evidence of the cost to the parents of hiring help and no evidence they lack the resources to do so. The grievor asserted he had a second job, when first seeking a transfer to care for his mother, and there is nothing to suggest that job no longer exists. He offered no explanation for keeping a second job while seeking an accommodation to facilitate caring for his parents.

44Based on the foregoing analysis, I conclude there is not sufficient evidence to conclude a denial of accommodation would seriously interfere with the grievor’s ability to care for his parents.

45As to the grievor’s daughter, the evidence does not reveal the address of either the day care previously used or the baby sitter now utilized. Not knowing these locations, I cannot determine with any precision how much further the grievor must travel on weekdays to reach either of them from Toronto than he would have to travel if working at a Brampton store.

46Mr. Thompson contends his wife is unable to pick-up their daughter on weekdays or care for her on Saturdays. The grievor testified about his wife’s working hours as a part-time nurse, both scheduled and extra shifts, but there is no evidence about her hours of work since obtaining a full-time position. Moreover, his evidence about her part-time hours is not admissible, because he declined to identify her employer, thereby precluding the LCBO from contacting his wife’s employer to seek verification. Here too the grievor’s refusal to answer a pertinent question renders inadmissible his testimony about the subject of the question.

47In addition, the grievor refused to name his own second employer, thereby precluding the LCBO from investigating whether the second job limits his availability to care for his daughter at the relevant times.

48This analysis leads inescapably to the conclusion there is not sufficient evidence to conclude a denial of accommodation would seriously interfere with the grievor’s ability to care for his daughter.

X

49I turn now to an assessment of the evidence dealing with reprisal. After initially testifying Myron Tymochko made a comment about black people, the grievor conceded the district manager referred to gang members without mention of race.

50Mr. Thompson alleged Scott Tranton made a comment about the cost of dealing with health and safety concerns raised by the grievor, but he conceded Mr. Tranton was “always poking fun” on this subject. Likewise, the grievor described comments made “in fun” by store managers. In my view, remarks made with humorous intent are too ambiguous to provide significant evidence of reprisal. I also note the grievor consistently received very positive feedback in performance appraisals about his activities as health and safety representative.

51The grievor testified about obstacles and delays allegedly encountered when he requested accommodation. The documents before me show his request for a transfer based upon a vision problem was addressed promptly. It was denied as unsupported by medical evidence for which the employer offered to pay. His initial request for a transfer to care for his mother was also addressed promptly. A transfer for this purpose was denied but other accommodation was offered. The grievor found the offer unacceptable but did not tell the employer why he had rejected it. In both of these instances, he initially supplied limited medical information and the employer made a single request for additional information.

52The employer also responded expeditiously to the grievor’s first written request for a transfer based on his groin injury, transferring him to store 362. As the grievor gave no date for the earlier verbal request he claims to have made, I cannot determine the time lapse between any such request and the employer’s response. The grievor claims a request for accommodation relating to his daughter was made before the hearing commenced, but he did give the date of that request, making it again impossible to assess any delay.

53Six other employees have been transferred between districts but none of these transfers were made in circumstances comparable to those at hand. One of them was a casual employee for whom the collective agreement makes special provision. The other five were permanent employees like the grievor: one was transferred only for six months; three applied successfully for a vacant position; and one was transferred to protect her children from threatened harm, but not to the district she initially requested.

54The preceding assessment leads me to conclude there is not sufficient evidence to prove the grievor was denied a transfer by way of a reprisal.

XI

55The employer’s non-suit motion is granted because the union has not led sufficient evidence relating to reprisal or discrimination based on disability or family status.

56The grievances are dismissed.