'There was a list of things they could have done wrong, and they put checkmarks on every single item'
An Alberta company must pay a worker $30,000 in discrimination damages plus two weeks’ lost pay after it demoted and then dismissed her a few days after her husband, who was a shareholder and officer of the company, resigned, the Alberta Human Rights Commission has ruled.
The company’s actions, along with its pursuit of unsupported claims of misconduct and poor performance, was nothing short of a legal mess, according to Dylan Snowden, an employment lawyer at Carbert Waite in Calgary.
“They failed to consider what the problem was they were trying to address, they failed to take any reasonable steps to address that problem short of reassignment and/or termination, and they proceeded with a claim to just-cause termination with no grounds to do so,” says Snowdon. “It's hard to say what they could have done that would have made things worse for them.”
“There was a list of things they could have done to make things go wrong, and I think they put checkmarks on every single item.”
Family business
Devolbren Property Services was a small property services business based in Calgary with three shareholders – married couple Holly and Devell Pell, and Holly’s cousin Kyle Fisher, who held the title director of operations.
In 2014, Fisher’s fiancée, Nevada Marshall, joined Devolbren as an administrative assistant with duties that included filing, booking appointments, managing Devolbren’s social media accounts and website, and basic administrative duties. Marshall primarily worked from home on a company laptop so she could look after their young children.
Marshall also occasionally helped out with “in-field” work such as snow removal, lawn care, and basic landscaping, but this usually wasn’t for more than a few days. Fisher also performed in-field work.
Read more: Canada Post denied a worker’s application to a leadership program because her husband was superintendent and discriminated against her as a result, the Canadian Human Rights Tribunal ruled.
Over time, Marshall’s responsibilities increased to include health and safety duties and she received positive feedback on her performance. She and Fisher eventually married.
Employer claims just cause
On April 7, 2017, Kyle Fisher had a disagreement with the Pells and resigned as director of operations. Two days later, Devolbren informed Marshall that it could no longer continue her employment in an administrative role because of a conflict of interest – the company was concerned that Fisher would access confidential information on Marshall’s laptop.
It also told her that she could stay on with the company as an in-field employee, but pay would be significantly less.
Marshall asked for two business days to consider her options and consult a third party. However, on April 9, her doctor diagnosed her with acute anxiety and stress and recommended that she take two weeks’ medical leave. She forwarded the doctor’s instructions to Devolbren, which didn’t request any additional information.
On April 11, Devell Pell went to Marshall’s home and asked for her work laptop and any other company property at her home. One week later, Devolbren terminated Marshall’s employment for cause while she was still on medical leave. The letter of termination didn’t provide any details as to the reason.
Presumptions made
Devolbren created potential problems for itself by moving so quickly, says Snowden.
“The first thing that went wrong was leaping to the presumption that there was a problem – ‘Your husband isn't an employee anymore; therefore, you can't do your job,’” he says. “Reading between the lines, it appears that the problem was an emotional reaction: ‘We don't want to deal with this person or anyone connected with this person anymore.’”
“That’s an emotional reaction, but I don't think making emotional decisions is necessarily in an employer's best interests,” Snowden adds.
Marshall filed a human rights complaint, alleging that her family status and mental disability were factors in the decision to terminate her employment. She described feeling “severe stress” that affected her sleep and emotions.
Devolbren denied that it discriminated against her, claiming that the risk of Fisher accessing Marshall’s work computer at home created a conflict of interest. It maintained that offering her an in-field position was an accommodation.
The company also claimed that it had just cause to terminate Marshall’s employment due to performance issues and misconduct. It accused Marshall of using company credit cards for personal expenses without permission or reimbursing the company; being aware that her husband did the same and not advising Devolbren; failing to properly prepare the year-end report or remitting GST; of being seen working at a local casino during her medical leave; sending personal photographs to Fisher using her company phone and email; and booking a vacation at the company’s timeshare without authorization.
The evidence indicated that Kyle Fisher had charged personal expenses to the company credit card and had been warned about it, and he had forwarded the photographs to his own work email without Marshall’s knowledge.
Protected grounds and adverse impacts
The commission found that Devolbren lacked credibility as its evidence was inconsistent. It provided no evidence that it warned Marshall of any performance issues, that she misused the company credit card, she emailed the personal pictures, she was responsible for any errors in the year-end report, she improperly booked the time-share, or that Devolbren tried to contact her while she was on medical leave before terminating her.
The commission agreed that Marshall’s marital status, family status, and mental disability were protected characteristics under human rights legislation.
In addition, Marshall suffered two adverse impacts – when she was initially removed from her administrative position and offered a lower-paying job, and then when she was terminated, said the commission.
The commission found that Devolbren made no effort to determine whether Marshall could be accommodated without undue hardship. This could have been done by putting passwords on Marshall’s work laptop and having her work with greater supervision, said the commission, adding that there was no evidence of potential harm from Fisher accessing Marshall’s laptop anyway – Fisher was still a company shareholder who may have had a right to some of the information.
Read more: A worker’s stress stemming from complaints about her performance and meetings with management about those complaints was not a mental disability requiring accommodation.
Snowdon says had Devolbren actually looked the problem, they could have taken steps to address it without even needing to think about it from a human rights perspective.
“The termination of an employee can't be the only way to maintain confidentiality – otherwise, you can't have employees,” he says. “There were steps you could have taken, and the effect of those steps would have been to go through an accommodation process,” he adds.
The commission also found that Devolbren didn’t consider Marshall’s mental disability when it decided to terminate her while on medical leave. It was true that Marshall worked at the casino during her leave, but it was a job she had for a while – about which the Pells were aware – and there was no medical information stating that her disability prevented her from working there, the commission said, adding that there was also no evidence that allowing Marshall to complete her two-week medical leave would have caused undue hardship.
Devolbren was ordered to pay Marshall two weeks’ wages for wage loss flowing from the discriminatory termination – Marshall wasn’t seeking more than that as she didn’t want to “penalize” the company – plus $30,000 in general damages for injury to dignity from the multiple acts of discrimination.
Avoid emotional, snap decisions
The case is an example of an employer reacting emotionally or with a snap decision to an incident or misconduct, which usually causes trouble, says Snowden. And, he adds, it’s not just at small employers where flaring tempers and personality conflicts can lead to bad termination decisions.
“It can be big employers too, even if they've got an HR department and policies and processes in place,” he says. “We still see the field manager getting upset about something and firing someone and HR finds out about it later, but it's too late – that snap, emotional reaction has happened.”
A way to prevent this type of emotional, impulsive decision-making is to ensure that managerial staff are trained on policies and procedures and they’re aware that HR needs to be involved, Snowdon says.
“Make sure that the managers and supervisors know to always engage HR when terminating someone or before implementing a change to [an employee’s] position,” he says. “HR always needs to be involved – because, surely, an HR professional would have seen the problems with this [case].”
The $30,000 damages award is part of a recent upward trend in Alberta human rights cases. Snowdon says that damages for discrimination have historically been low in the province, and the Alberta Human Rights Commission has been moving towards correcting that – following other jurisdictions in sending the message that discrimination is serious.
“The commission has repeatedly stated the expectation that damage to dignity and self-respect awards will increase over time… as knowledge of human rights becomes more ingrained and knowledge of problematic discriminatory conduct becomes more known,” says Snowdon.
“This means that if an employer finds a similar case [in the past] with damages to dignity and self-respect at some dollar amount, the expectation should be that that dollar amount will go up – depending on how old the cases they found, it may be up by a lot.”
See Fisher (Marshall) v. Devolbren Property Services Inc., 2022 AHRC 67.
