Employer constructively dismissed employee after workplace assault

Muslim owner discriminated against non-Muslim worker by trying to transfer her after attack by Muslim co-worker

An Alberta employer must pay 24 months’ wages and another $15,000 in damages to an employee who was transferred following an assault by a co-worker who shared the same religion as the owner, the Alberta Human Rights Tribunal has ruled.

Aleksandra Andric was general manager of a hair salon in the West Edmonton Mall operated by Spasation. She was hired in 2000 as a receptionist and promoted to general manager in 2009. During her time with Spasation, Andric was considered a high performing employee who got along well with customers and had strong product sales.

On March 8, 2010, Andric was talking on the telephone at the spa when a co-worker came up behind her, grabbed her hair and punched her in the face. Police were called and a stylist working at the time said she saw the co-worker on top of Andric punching her. The stylist also said the co-worker’s husband tried to attack Andric as well but was held back. After the altercation ended, the co-worker and her husband left the salon, yelling at Andric “this is not over, you don’t mess with Allah.”

The owner of Spasation, Hasoon Rahal, met with Andric at the Spasation head office four days later and told her she was being transferred to another Spasation location “due to recent violent conflict” and “for business reasons.” He also noted it would be safer for Andric at another location. Andric said she would rather not transfer as she felt she would be safer at the West Edmonton Mall location because she would be with people and a location with which she was familiar. In addition, the attacker and her husband had been banned from the mall.

Rahal mentioned that the co-worker who attacked Andric and her husband were friends who attended the same mosque, and when Andric requested he talk to the police about the incident, Rahal said “I know her husband’s family, we’re from the same community, we go to the same mosque. Muslims must respect each other.” Rahal also suggested Andric was responsible for the attack and told her “you don’t look too bad.”

The employee who attacked Andric was fired, but some months later was hired to work at another Spasation location.

Andric filed a human rights complaint, claiming Spasation decided to transfer her because of the common religion ancestry, or place of origin shared by Rahal and the employee who attacked her, and this transfer constituted constructive dismissal.

Rahal denied having any interaction with the employee who assaulted Andric and her husband, but later said he knew them and had spoken to the husband on the phone.

The tribunal found Rahal’s explanations were often contradictory and therefore had little credibility. As a result, the evidence led it to believe Rahal had contact with the employee who assaulted Andric and that employee's husband.

The tribunal also found Rahal’s statements regarding the mosque and respecting other Muslims indicated the decision to transfer Andric was motivated “at least in part” by the fact that Andric wasn’t a Muslim like Rahal, the attacker, and the attacker’s husband. There was also no mention in Rahal’s explanation to Andric that the transfer was lateral or better. Andric didn’t know anything about her new location, responsibilities or pay, which was an adverse impact from the decision.

The tribunal found Andric’s transfer wasn’t rationally connected to job performance, business reasons — it was only a week after the assault and the business hadn’t changed — or safety. Spasation could offer no reasonable explanation for the transfer, said the tribunal. As a result, there was no bona fide occupational requirement for the transfer that could override the adverse impact Andric suffered from being removed from a location where she had worked for 10 years.

The tribunal noted Andric felt demeaned by Spasation’s treatment of her — Andric reported this treatment felt worse than the actual physical attack and it “profoundly impacted” her.

Spasation was ordered to pay Andric the equivalent of 24 months’ wages, including a top-up of her earnings at a subsequent employer where she earned less starting in November 2010. In addition, Spasation was on the hook for $15,000 in damages for distress, injury and loss of dignity.

“The unilateral transfer after the ten-year employment relationship negatively impacted Ms. Andric’s self-esteem,” said the tribunal. “(Andric) felt as though (Spasation) was justifying or tolerating the physical injuries inflicted on her and then penalizing her because she was not a Muslim."

For more information see:

Andric v. 585105 Alberta Ltd., 2015 CarswellAlta 2374 (Alta. Human Rights Trib.)

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