A parent of a newborn may be fired for refusing to take an out-of-province work assignment, the B.C. Court of Appeal has ruled, overturning decisions of B.C. Supreme Court and the Human Rights Tribunal.
The court said an employee had not established that his being ordered to work out of town for a period would harm the care his child would receive.
“There are many parents who are required to be away from home for extended periods for work-related reasons who continue to meet their obligations to their children,” the court said Feb. 5 in ordering the case returned to the tribunal.
Brian Suen alleged before the tribunal that Burnaby-based Envirocon Environmental Services discriminated against him on the basis of family status when, shortly after the birth of his jaundiced daughter, it assigned him in January 2016 to a Manitoba project requiring him to be away from home for eight to 10 weeks.
On previous out-of-town assignments, the company had rotated Suen home.
Considering his family situation, Suen refused, saying in “consideration of my wife and four-month-old baby, I will not be going to Manitoba.”
The company director of projects replied in an email: “When I assign you to an out-of-town project, it is not appropriate to respond with a statement to the effect of ‘yeah, no, I am not going to go.... This was out of line, inappropriate and viewed by me as insubordinate.”
Suen was immediately fired.
The tribunal decision said the company asserted it was a condition of Suen’s employment that he could be assigned to work on projects away from Burnaby, an assertion Suen denied.
Suen filed a complaint with the tribunal, which Envirocon applied to have dismissed. Tribunal member Emily Ohler ruled evidence justified the case going to a hearing, a decision B.C. Supreme Court Justice Miriam Maisonville called reasonable.
Ohler also said the company’s suggestion that Suen had ‘”no special skill or ability’ to make him indispensable in caring for his daughter” minimized a father’s role.
“This argument could serve to reinforce ideas that fathers are ancillary to their children’s lives; that the brunt of childcare belongs to mothers; and that a coupled parent’s obligations are solely the most basic needs of a child with no regard to the co‐parenting spouse or a more fulsome recognition of what parenting means in the life and development of a child,” Ohler said.
Suen’s lawyer, Fred Wynne, said family status discrimination is harder to prove in B.C. than in any other province.
“This is about him trying to get some redemption and compensation for how he was treated,” Wynne said, noting an appeal to the Supreme Court of Canada hasn’t been ruled out.
“I expect there would be interest in this kind of case,” he said.
Envirocon’s lawyer was not immediately available for comment.