Worker's allegations were speculation; employer had evidence of non-discriminatory factors
A British Columbia worker’s allegations of race and age discrimination following a reduction in hours and termination of employment was speculation without proof, the BC Human Rights Tribunal has ruled.
Maysam Pharmacy was a pharmacist-owned franchisee that operated a pharmacy and store under the Shoppers Drug Mart name in British Columbia. The store was staffed by pharmacists, pharmacy assistants, and pharmacy students.
The 65-year-old worker was a pharmacy assistant at Maysam, hired in 2003. He was an Egyptian-Canadian of Arab background.
In October 2019, a new owner purchased the pharmacy and determined that changes were needed to the staffing schedule to make things run more efficiently. Shifts didn’t correspond to busy times of the day and staff restricting their availability to certain days and times was creating a problem.
On Oct. 11, all staff were asked to sign a “six-week notice for a change in schedule,” which required them to open their availability to any time during operating hours. The worker discussed the notice but he didn’t sign the document.
Reduced hours
Given that the worker didn’t open up his availability, the pharmacy only scheduled him for one shift during the second week of December, on Dec. 10. The worker was accustomed to working 12 to 18 hours per week.
The worker spoke to the owner about the one shift and the owner explained that she had to prioritize shifts based on what was best for the business. According to the owner, the worker became agitated during the conversation, yelled “I quit,” and left the store before the end of his shift.
The worker denied saying that he quit. However, he didn’t show up for his scheduled shift on Dec. 10 and didn’t notify the pharmacy of his absence.
The following month, in January 2020, the pharmacy lost several large clients, which reduced workload and staffing requirements.
No work available
On March 4, the worker emailed the pharmacy owner to advised that he was now available during operating hours, which was his first communication since he had said that he quit three months earlier. The owner told him about the decrease in business and staffing reductions, saying that there wasn’t a regular shift available for him but she would let him know if that changed.
Soon after, the COVID-19 pandemic hit, causing another decrease in business for the pharmacy. On April 6, the worker emailed again about hours, saying that his other employer didn’t have enough work for him. The owner said there was no work available because of the downturn in business.
The decreased business continued throughout the pandemic, and by January 2021, the pharmacy’s prescription count had fallen by nearly half since the owner had purchased the store in October 2019. As a result, the pharmacy sent the worker a termination letter offering him eight weeks’ pay in lieu of notice pursuant to the BC Employment Standards Act. It also offered another 37 weeks’ pay if the worker signed a release of all legal claims. The worker declined to sign the release.
The pharmacy dismissed about six other employees around the same time, with all of them not having worked a shift in some time.
Age, race discrimination allegations
The worker filed a human rights application alleging that the pharmacy discriminated against him in the area of employment when it reduced his work hours and terminated his employment. He claimed that his race and age were factors in the work reduction and termination.
The worker pointed out that his 12 to 18 hours per week weren’t a problem before the new owner took owner, he was removed from the schedule and laid off after two months under the new owner, he was effectively terminated when his schedule was reduced, he was the oldest employee at the pharmacy, and he was the only person of Arab ethnicity at the time he was terminated. These factors were enough to infer that his age and race were a factor in the adverse impacts he experienced, the worker said.
The pharmacy applied to have the application dismissed as having no reasonable prospect of success because he quit and wasn’t terminated – meaning there was no adverse impact. It also argued that the worker wouldn’t be able to prove that his race or age were a factor in any adverse impact.
The tribunal referred to the three elements that the worker would have to show to prove discrimination at a hearing – he had a characteristic protected by the BC Human Rights Code, he was adversely impacted in employment, and his protected characteristic was a factor in the adverse impact. If he was able to prove discrimination, the pharmacy would have to justify the impact was a bona fide occupational requirement, the tribunal said.
The tribunal agreed that the worker’s race and age were protected characteristics under the code. It also found that the worker might be able to prove at a hearing that he experienced an adverse impact when his work hours were reduced and that the pharmacy terminated him – the pharmacy scheduled him for only one shift in December and non after that until it sent him a termination letter about one year later, said the tribunal.
Treated as employee
The tribunal also found that it was arguable whether the worker quit his job. Although the pharmacy said that the worker stated that he quit, the pharmacy continued to act as if he was still an employee – the owner communicated with him about available work and said that she would let him know if hours became available, the tribunal said, adding that the fact that the pharmacy sent the worker a termination letter and package in January 2021 took the worker’s claim that he was fired out of the realm of conjecture.
However, the tribunal found little indication that the worker would be able to show that his race and age were factors in the adverse impacts. It acknowledged that race-based discrimination often didn’t have direct evidence and sometimes it had to be inferred, such inferences had to be based on some evidence. In this case, the worker’s allegations were based completely on speculation, the tribunal said.
The tribunal considered that the worker refused to open his availability for shift work when the pharmacy was trying to better manage scheduling and that he failed to show up for his scheduled shift on Dec. 10, 2019. The pharmacy also provided evidence that its business and workload dropped significantly and several other pharmacy employees were let go around the same time as the worker was, the tribunal said.
“The evidence before me suggests that the pharmacy treated other employees the same way,” said the tribunal. “In this instance, I am satisfied that the pharmacy is reasonably certain to prove that the timing of the adverse impacts was due to [the worker’s] refusal to increase his availability for shifts, [his] failure to show up for scheduled shifts, and the reduction in overall pharmacy business.”
The worker’s application was dismissed for having no reasonable prospect of success. See Soliman v. Maysam Pharmacy Ltd. Dba Shoppers Drug Mart #263, 2024 BCHRT 184.
