'The employer thought he just needed to prove that he had a good reason to terminate, but that's not enough'
An Alberta employer must pay a former worker more than $36,000 after it fired her while she was pregnant, the Alberta Human Rights Tribunal has ruled.
The employer may have had other reasons for dismissing the worker, but it was unable to prove that the dismissal and a previous reduction in hours were unrelated to the worker’s pregnancy, says Dylan Snowdon, an employment lawyer at Carbert Waite in Calgary.
“The onus of proof is so much higher for the employer and the legal test was going to be a much taller mountain to climb,” says Snowdon. “The employee didn't have to prove nearly as much, and it was more a result of the employer failing to meet its burden of proof and failing to bring forward enough evidence to reasonably explain the termination.”
The worker was hired in July 2013 as a server at LDV Pizza Bar in Calgary. Initially, she worked two evening shifts per week.
By early 2014, the worker’s schedule increased to four and sometimes five shifts per week. The majority remained in the evening, although she occasionally worked the lunch shift.
Worker announced pregnancy
In mid-March, the worker advised the restaurant’s owner that she was pregnant. Shortly thereafter, she started being sent home earlier and her hours were reduced. From February to mid-March, she worked about 23 hours per week, but after her announcement her hours decreased to about 17.5 hours per week.
The worker’s schedule also changed from going until 10 p.m. or midnight to mostly ending by 9 p.m. This put more financial pressure on the worker, particularly since the evening shifts were more lucrative in tips.
On May 5, the owner sent out the weekly schedule that started the next day. It had the worker working four straight day shifts running from 11 a.m. to 4 p.m.
The new schedule on short notice was problematic for the worker, as she normally worked mostly evening shifts and had never worked four lunch shifts in a row. She also arranged her personal schedule around evening shifts, such as child-care arrangements, medical appointments, and teaching a volunteer yoga class.
The owner wanted to build a lunch business in advance of the upcoming World Cup soccer tournament and had spoken to several servers about working lunch shifts - although it was only mentioned in passing to the worker and the other servers regularly worked in the day.
A Statistics Canada employee’s term of employment was not extended because of a lack of work, not her pregnancy, a board ruled.
Worker wanted evening shifts
On the morning of May 6, the worker emailed the owner to say that she was able to change her appointments for that week. However, she pointed out that she had never been scheduled for just day shifts before and it was “not the best schedule for me.” She preferred her regular schedule from the past several months.
A short time later, the owner texted the worker to call him. The owner denied texting or emailing the worker first and said that she called him “out of the blue” and refused to work the lunch schedule.
The owner advised the worker that he was “going to have to let her go.” She asked the owner if he was firing her because she was pregnant and he replied that he couldn’t have her in the restaurant while pregnant because he could not raise his voice to her in her condition.
The worker made a complaint of discrimination on the protected ground of gender. She also filed an employment standards complaint.
An Ontario court gave a worker who was fired while five months pregnant extra notice because she was unlikely to find a new job.
‘The last straw’
The owner claimed that the worker’s pregnancy was not an issue and he denied making any reference to it. He acknowledged that he hadn’t planned on terminating the worker’s employment, but her attitude during the phone call was “the last straw.” He said there were performance issues, but he had not formally advised her of any.
An employment standards officer investigated the employment standards complaint and spoke with the owner. The owner initially told the officer that the worker was terminated due to lack of work relating to renovations and then later said it was because of her appearance in her pregnancy. The owner denied that the phone call happened.
A 2020 tribunal decision found there was discrimination, but the Alberta Court of King’s Bench overturned it due to irregularities in the hearing and sent it back for a new hearing.
In the second go-round, the tribunal noted that the worker’s pregnancy was related to her gender and therefore was a protected characteristic under the Alberta Human Rights Act – meeting the first part of three-part test for discrimination.
The second part of the test was met as well, as the worker’s reduction in hours and termination were adverse impacts. The schedule change also had short-term significant effect for the worker that was also an adverse impact, said the tribunal.
Pregnant workers could be more vulnerable to health risks, so pregnancy could trigger the right to refuse unsafe work, according to the Supreme Court of Canada.
Contradictory evidence
The tribunal found that the owner’s denial that he mentioned pregnancy in connection with the worker’s dismissal wasn’t credible, particularly since he gave contradictory information to the employment standards officer and mentioned pregnancy to her. The worker was consistent and specific in her version of events, along with being supported by the employment standards officer’s account, and the owner’s evidence was “vague, generalized, and self-serving,” the tribunal said.
The tribunal determined that the owner admitted to both the worker and the officer that the worker’s pregnancy was at least a factor in the termination decision, meeting the third step in the discrimination test. In addition, the timing of the reduction in hours immediately after the worker revealed her pregnancy supported the explanation that it was a factor there as well, the tribunal said.
The restaurant owner’s lack of credibility or evidence put the employer in a deeper hole, since it had a higher burden to reasonably explain the termination, says Snowdon.
“The employer acknowledged not formally advising the [worker] of the performance issues and acknowledged the performance issues were not significant enough that he was considering termination for them, and then all of a sudden he had this one phone call and that was the last straw,” he says. “Consistency of evidence was missing from the employer, whereas the employee didn't need an explanation, [she] just had to prove that there was an adverse impact in respect to a protected ground.”
However, the tribunal did not find that the pregnancy was a factor in the schedule change. There was a legitimate reason for it and it didn’t impact the worker’s ability to work, as she rescheduled her appointments for that week. The worker might have required accommodation later, but they didn’t get to that point, said the tribunal.
An employer can refuse to hire a pregnant job applicant for a short-term contract when it is known she will not be able to fulfill the contract, says an employment lawyer.
No justification
The restaurant did not provide any evidence that it accommodated the worker or couldn’t accommodate her, so there was no justification for the discrimination, the tribunal added.
“Where the complainant has a protected characteristic and an adverse impact, then the onus shifts to the employer to show that there's not a connection between those things,” says Snowdon. “The employer thought he just needed to prove that he had a good reason to terminate, but that's not enough – it needed to prove it wasn't discriminatory.”
Noting that the worker was particularly vulnerable because of her pregnancy, she received her final wages two weeks late, the restaurant failed to submit a Record of Employment that delayed her parental leave benefits, and the owner’s unfounded allegations of performance concerns, the tribunal determined that $25,000 in damages for compensation for injury to dignity was appropriate.
The restaurant was also ordered to pay more than $9,000 in lost wages for a total award of more than $36,000.
The restaurant erred by trying to defend itself by saying that there was a good reason to terminate without proper documentation or evidence, says Snowdon.
“That's not the end of the analysis, whether the termination was entirely discriminatory – the question is, was there even a tiny bit of a discriminatory element?” he says. “It's up to the employer to prove there wasn't, and that's going to be extremely difficult to come up with that evidence of showing that it just wasn't discriminatory.”
“We had an employer rushing too quickly to a termination, not considering the appearance of it or the likely outcome,” adds Snowdon. “I think any knowledgeable HR professional would have identified this as being a problematic direction in which to go.”
See McPherson v. 557466 Alberta Ltd. o/a LDV Pizza Bar, 2023 AHRC 36.
