Robyn Benson, PSAC

Fiona Johnstone: justice delayed--but not denied


Ten years. A decade of struggle for Fiona Johnstone—for the basic right to achieve a work-life balance through reasonable accommodation by her employer, the Canadian Border Security Agency (CBSA). They didn’t want to do it, even if they had no good reason not to. But with unwavering support from her union, she fought back and she won.

The issue boiled down to this: Johnstone worked full-time, and asked for a fixed shift from CBSA so she could arrange childcare. CBSA said no, unless she agreed to be part-time. That would have affected her pension, opportunities for training and promotion, and obviously her take-home pay. CBSA didn’t even try to argue that the requested fixed shift was an unreasonable demand on the employer. It just refused her request, and stuck to its refusal for years, no doubt hoping to wear Johnstone down. If that was the strategy, it was an unsuccessful one.

Her complaint before the Canadian Human Rights Tribunal—discrimination based on family status—led to her first win. The Tribunal stated that “an individual should not have to tolerate some amount of discrimination to a certain unknown level before being afforded the protection of the [Canadian Human Rights]Act.” The employer undertook no analysis, but simply claimed that it would suffer undue hardship if it allowed Johnstone her fixed shifts. The Tribunal found that CBSA had acted willfully and recklessly, ordered it to pay lost wages and benefits, and, in addition, awarded Johnstone $35,000 in damages.

The CBSA responded, not by making things right, but by appealing to the Federal Court of Appeal. In May of this year, the court upheld Johnstone and had this to say:

Many parents will be impeded from fully participating in the work force so as to make for themselves the lives they are able and wish to have. The broad and liberal interpretation of human rights legislation requires an approach that favours a broad participation and inclusion in employment opportunities for those parents who wish or need to pursue such opportunities.

And finally, after a few weeks’ delay, the CBSA threw in the towel on June 26.

Well done, Fiona! It was a fine victory that will have wide effect for many parents.

And yet, as pleased as I am personally with this outcome, I’ll admit to some on-going frustration. This shouldn’t have taken ten whole years to resolve. The employer had no good reasons to oppose her request in the first place, but fought on blindly, will all of its resources. And in the federal Public Service this is nothing new. Remember Lorraine Martin, stranded by a massive volcanic eruption in Iceland, and penalized by her supervisor in the Department of Veterans Affairs? That one took four years to be put right.

The federal government, our members’ main employer, seems to have a policy of saying No just for the sake of exercising power and control, without regard to the rightness or wrongness of its case. They keep losing, just as the government itself has been doing recently—but at such great cost to everyone. Try to imagine a Public Service where these issues are resolved quickly, and in good faith. An impossible dream?

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This page contains a single entry by Robyn Benson, PSAC published on July 10, 2014 8:00 AM.

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