Employer had business reasons for elimination of position; offered worker new job at same pay but with different schedule
A British Columbia company didn’t discriminate against a worker on maternity leave when it eliminated her position and offered her a different one when she returned, the B.C. Human Rights Tribunal has ruled.
Savitri Thejoisworo was employed as a research development technologist for Northern Gold Foods, a manufacturer of food products such as cereals and bars. The company operated two facilities in Canada, one in B.C. and one in Ontario. Thejoisworo was hired to work at the B.C. facility in March 2015. She was the only employee at the facility in a research and development position.
In March 2018, Thejoisworo went on sick leave followed by maternity leave. It was her second child and maternity leave while employed with Northern Gold. The company didn’t initially hire anyone to replace her, as they assessed the research and development workload and determined it would only take up between 30 and 40 per cent of a full-time position. It eventually hired someone temporarily to work part-time in Thejoisworo’s role and part-time as a production supervisor. The plan was that if Thejoisworo returned within 12 to 18 months, the new employee would become a full-time production supervisor.
Thejoisworo contacted Northern Gold in July 2019 to discuss her return to work. They decided on Sept. 3, which was about one month earlier than when she had initially planned to return. Thejoisworo than contacted the HR manager about product development projects that were underway to help her prepare. The HR manager said that a project was underway and he had been working with that customer on various projects during her leave.
No need for position
However, Northern Gold’s primary customer moved its research and development projects to its own in-house staff, which left no such work at the B.C. facility. As a result, there was no longer any need for Thejoisworo’s position.
Feelings that an employer’s conduct was discriminatory will not form the basis for an inference of discrimination.
The HR manager planned a meeting to discuss Thejoisworo’s return, but he spoke with her on the phone first on Aug. 12. During the call, he told Thejoisworo that her research development technologist position was no longer available. The same day, a former colleague sent Thejoisworo a link to a Northern Gold job posting for a research and development technologist position for the company’s U.S. facility in Oregon, which had been taking on much of the company’s research and development work.
Thejoisworo met with the HR manager and the operations manager on Aug. 13 and they told her that she couldn’t return to her previous role, but they could put her in a quality control position with the same salary but with rotating shifts — her old job had regular shifts. Thejoisworo was “shocked and devastated” and felt she was being demoted to what amounted to an entry-level position because she took maternity leave. She told them that she felt she was being treated unfairly and wanted a position equal to her previous role.
One week later, they told Thejoisworo that upper management agreed that she couldn’t return to the research and development job. They said they would consider offering her a three-month adjustment period during which she could work regular shifts in the quality control position, but she would then have to work the rotating shift schedule required of the position.
Thejoisworo said that a rotating shift schedule wouldn’t work with her daycare arrangement and asked for suggestions as to what she could to. According to her, they ignored her question, although quality control technicians had predicable schedules and the managers believed Thejoisworo could be accommodated once she started in the position.
However, Thejoisworo didn’t return to work and resigned from her employment by email on Sept. 4. She said that she wasn’t prepared to accept the changes Northern Gold had made to her position and work hours and she believed that she had been constructively dismissed.
The HR manager responded with a letter stating that Northern Gold wanted her to continue to be a part of the team. He added that the quality control position wasn’t a demotion and had the same lab, desk, co-workers, pay, and benefits as her previous position. He also clarified that the changed wasn’t because of her maternity leave but rather the company’s primary customer didn’t use them for product development anymore — there hadn’t been any research and development work done at the B.C. facility since July 2019.
Thejoisworo spoke with staff at the B.C. facility, who told her they were developing and conducting trials for a product in the summer of 2019, along with new “stuff” for customers. One of the staff members left at the end of July, but Thejoisworo felt the company was still doing research and development in B.C. because such projects take six to 12 months.
Thejoisworo filed a human rights complaint claiming Northern Gold discriminated against her by demoting her because she took maternity leave. Northern Gold file an application to dismiss her complaint on the basis that she wouldn’t be able to prove discrimination and her complaint had no reasonable prospect of success.
The tribunal noted that for there to be discrimination, Thejoisworo had to prove that Northern Gold changed her position from a research and development one to a quality control one, the change was an adverse impact in her employment, and her maternity leave was a factor in the adverse impact. It added that someone’s “feelings that a respondent’s conduct was discriminatory will not form the basis for an inference of discrimination” and there must be “a factual basis” to prove discrimination.
Worker’s belief of discrimination not proof
The tribunal found that Thejoisworo’s schedule in the quality control position would have changed after three months, so it was likely that she could prove that the change was an adverse impact in her employment. Thejoisworo also strongly believed that her maternity leave was a factor in the decision to change her position, the tribunal said.
However, the tribunal determined that there was enough evidence to support Northern Gold’s assertion that there was no more research and development work for Thejoisworo. It was clear that much of the work at the B.C. facility dried up after the primary customer shifted to in-house research. Although there was some work by staff to whom Thejoisworo talked, it wasn’t related to the type of work she did — product trials were related more to testing manufacturing capability rather than research of new recipes and products.
The tribunal pointed to evidence showing that the B.C. facility had 154 employees in March 2018 when it was heavily involved in collaborative research and development efforts and 95 about two years later when all research had essentially stopped. The job posting Thejoisworo had been sent was for the U.S. facility, where most of that work had moved.
The tribunal also found that there was no evidence that Northern Gold benefitted from removing the research and development work from the B.C. facility before Thejoisworo returned because of her maternity leave rather than for business reasons. In addition, management offered to keep her at her existing salary with three months at the same shift schedule — suggesting that there was no “ulterior motvie” in eliminated her position, said the tribunal in dismissing the complaint.
“Overall, the evidence does not support Ms. Thejoisworo’s assertion that she was singled out because of her maternity leave, rather than her R&D job being impacted because she was the only employee in that role,” said the tribunal.
For more information, see:
- Thejoisworo v. Northern Gold Foods Ltd. and others, 2021 BCHRT 121 (B.C. Human Rights Trib.).
