Termination decision in restructuring from non-discriminatory factors: court
The Federal Court has upheld a finding that the termination of a worker’s employment two months after she returned from maternity leave while keeping the employee who filled in for her was not discriminatory and related to a legitimate restructuring.
The worker was employed with TM Mobile (Telus) since 2007. She held several positions with the company and became a business systems analyst in April 2017. Prior to that, she had been a business analyst for 18 months.
Two months after the worker began the business systems analysist position, she was scheduled to go on maternity leave in June. About one month before, another employee who was working in a different department was assigned to be the worker’s backfill replacement for her leave. This employee had been with the company since 2004 and the worker trained the backfill replacement up to the beginning of her maternity leave.
The worker was scheduled to return to work on Sept. 11, 2018. About one month earlier, her manager received approval to add a fourth person to the three-person Workforce Information Systems Performance (WISP) team. As a result, when the worker returned, the replacement employee was made a permanent business analyst I alongside the worker.
Elimination of position in restructuring
In late November, Telus announced a corporate restructuring plan that identified positions to eliminate in each business unit. The WISP team was required to cut one position.
The manager determined that the worker and her former maternity leave replacement had similar duties and responsibilities and their work was interchangeable. As a result, the decision as to which one had to go would boil down to their seniority and experience in the position.
The worker had 14 years of service with Telus, while the worker had just under 12. As for experience, the former replacement had been in the business systems analyst role for 19 months, while the worker had been in the role for three months prior to her maternity leave with one year prior to that in an acting capacity for another position.
The manager determined that the worker, with less seniority and less time in the position, would be dismissed. The restructuring plan involved the termination of 81 employees across Canada in total.
Unjust dismissal complaint
The worker filed an unjust dismissal complaint under the Canada Labour Code, alleging that her maternity leave was a factor in her dismissal.
The adjudicator found that Telus had economic justification for the restructuring and the company was able to prove that the worker was laid off because of the “discontinuance of a function,” which was allowed under the code. The evidence showed that the worker’s activities were divided among the remaining three people on the WISP team.
The adjudicator also found that the creating of a fourth position a couple of months before the layoff was not bad faith, as the manager legitimately sought to expand the WISP team during the worker’s leave and was not notified of the restructuring until months later. In addition, there was enough evidence to show that the decision to keep the other employee over the worker was from the “assessment of traditional and objective criteria” employers normally use for layoffs.
The adjudicator determined that the worker’s maternity leave was not a factor in her dismissal and dismissed her complaint.
Adjudicator’s decision unreasonable: worker
The worker sought judicial review, alleging that the adjudicator incorrectly and unreasonably applied the “discontinuance of a function” provision, miscalculated her length of service by not crediting her time on maternity leave while the other employee’s experience backfilling her position was counted, and incorrectly found no discrimination.
The court noted that Telus provided evidence that the role held before April 2017 was different than business systems analyst. As a result, she only had two months as a business systems analyst before her maternity leave, said the court. The other employee had more experience in the role, even if the worker’s maternity leave was included, the court added.
The court also found that the other employee had greater seniority with Telus, regardless of whether the worker’s experience in the role was miscalculated or her maternity leave was included. The other employee had the advantage in both categories that were assessed and it was reasonable for the adjudicator to accept that the termination decision was made in good faith from these factors, said the court, agreeing that the assessment was based on traditional and objective criteria.
In addition, counting the other employee’s experience while backfilling the worker’s position while the worker gained no experience on her leave was not discriminatory, as the code allows an employee to accumulate seniority while on maternity leave but not experience in a role. Experience is a measure of actual time spent in a role and a measure of skills that someone on leave can’t accumulate, the court said, adding that the overall length of service of the employee on leave would affect whether this was a disadvantage or not.
“If, like the [worker] suggests, the [company] ought oonot to have considered the experiences [the other employee] accrued while backfilling the [worker], this would disadvantage all casual or temporary employees -many of whom are women, including many who are racialized -as the experience they accrue from these temporary positions would never be counted,” said the court.
Evidence outweighed timing of dismissal
The court noted that the timing of dismissal can be indicative of a discriminatory practice and the worker pointed to the fact that hers came just over two months after her return, but in this case the adjudicator reasonably found that there was no evidence that the worker’s maternity leave was a factor in her dismissal. Although the worker may disagree with the assessment, she couldn’t point to any reviewable errors in the adjudicator’s determination.
Finally, the court found that the adjudicator’s assessment of Telus’ evidence of economic justification for the restructuring that resulted in a discontinuance of a function was also reasonable.
The worker’s application for judicial review was dismissed. See Giffen v. TM Mobile Inc., 2023 FC 1666.
