'If one of the reasons [for dismissal] was family status, that's enough'
A British Columbia employer must pay more than $70,000 in damages for family status discrimination stemming from the worker’s dismissal after her husband quit because of an argument with the owner, the BC Human Rights Tribunal has ruled.
While the employer claimed that there were issues with the worker’s performance and attitude following the altercation, there was no getting around the fact that the worker’s marriage was a factor in her termination — a protected human rights ground, says Melanie Samuels, partner and co-chair of the Employment and Labour Group with Singleton Reynolds in Vancouver.
“Even if [the owner] had 50 other good reasons [for dismissal], if one of the reasons was family status, or marital status in this case, that's enough,” she says. “The evidence was that, clearly, in part it was related to the fact that she was married to the man that he'd had these issues with, and so there's no way he could get around that… if she hadn't been married to [her husband], it likely wouldn't have resulted in her losing her job.”
The worker was a licensed optician who began working for Grapevine Optical, a retail eyewear business in Oliver, B.C., in 2008. She started in a part-time role but soon became the store manager on a full-time basis, with a flexible schedule due to childcare responsibilities.
The owner didn’t live in Oliver, so he was absent most of the time and allowed the worker to run the store mostly independently. They had a good working relationship and spoke about having the worker take over the store one day.
In 2016, the worker suggested that Grapevine hire her husband to relieve some of her workload, and the owner agreed.
The worker’s husband was employed at the store for three years until June 10, 2019, when the worker overheard the owner talking to an optometrist who ran the clinic attached to the store about the clinic’s sign. The optometrist wanted to put his name first on the sign ahead of another optometrist who was no longer at the clinic.
The worker got upset that she hadn’t been informed that the other optometrist was no longer at the clinic and the planned changes to the sign, as she was the store manager. They had a heated exchange and the worker used a profanity, which shocked the owner as he didn’t use or approve of such language.
Things were tense the rest of the day and the worker left a few minutes before the end of her shift. When she said goodbye to the owner, he didn’t respond. The worker’s husband, who was also leaving, turned back and made a sarcastic remark.
Read more: Canada Post’s concerns over a conflict of interest because an employee was married to her shift superintendent led to discrimination.
The owner followed them out of the store and there was an altercation with yelling and threats between the owner and the worker’s husband. The husband never returned to work and filed a bullying and harassment complaint with WorkSafeBC.
The next day, the worker arrived at work and told the owner that her husband had quit. She made a remark about only coming to work for the paycheque, to which the owner took offence.
Things stayed cold between them and on June 25, WorkSafeBC inspectors came to the store. The worker later learned that it was due to the complaint from her husband, which made her anxious about her employment status.
WorkSafeBC issued orders for the store to implement a health and safety program and the owner told the worker that he would handle it. The owner later claimed that he didn’t know at the time that it was initiated by a complaint from the worker’s husband.
Managerial responsibilities revoked
The worker went on vacation for a couple of weeks and the owner developed a plan to revoke the worker’s management duties until things improved. He no longer trusted her with financial matters, as she had cashed her paycheque four days earlier and issued bonus cheques early, before she left on vacation.
On July 10, the owner informed the worker that he was taking over management responsibilities. The worker was shocked and asked if he was firing her or laying her off, and then asked him to lay her off so she could collect employment insurance (EI). She gathered her belongings, gave him her key and asked about her record of employment (ROE).
According to the owner, the worker became emotional and “begged” him to let her go. He later claimed that the worker was asking permission to quit, but the worker denied it.
When the worker received her ROE, it stated that she had quit, so she emailed him again to say she hadn’t quit. The owner didn’t respond to any of her emails about the ROE or severance pay.
Service Canada determined that the worker had not quit and she was entitled to receive EI benefits. The B.C. employment standards branch determined that Grapevine had violated the Employment Standards Act and ordered the store to pay her severance. The owner refused to comply.
“The tribunal didn't call it that, but that's constructive dismissal — he stripped her of most of her essential duties and the tribunal found that, whether he intended it or not, this was termination of employment,” says Samuels. “And [the owner] didn't change anything, he continued on his course.”
After the worker’s termination, Grapevine implemented a policy against hiring spouses. A short time later, the worker filed a human rights complaint for discrimination on the basis of marital status.
Perception of divided loyalties
The tribunal found that the owner perceived that the worker was placed in a position of divided loyalties between Grapevine and her husband, which eroded his trust in her. Since he previously allowed the worker to run the business with little oversight, this significantly affected her job, the tribunal added.
However, the tribunal also found that other than the tension between them following the altercation and her one comment about only coming to work for a paycheque, there was no evidence that the worker failed in her duties or otherwise worked differently.
The tribunal noted that the owner may have been increasingly unhappy with the dynamic of the workplace and he didn’t like the incident of swearing or the early bonus cheques, but these weren’t enough to show that the longstanding employment relationship wasn’t viable — particularly since no corrective steps were taken before the altercation. The altercation with the worker’s husband triggered a decline in a previously positive working relationship that resulted in the worker’s termination, the tribunal said.
Read more: The Alberta Human Rights Tribunal ordered an employer to pay a husband and wife $20,000 in discrimination damages each after it fired the husband to avoid paying worker’s compensation for the wife.
Grapevine’s owner may have had other concerns about the worker, but the termination was discriminatory because her family status was a factor, says Samuels.
“You take away from your own credibility if you're taking positions that are petty, and if [the owner] had conducted himself differently, then I think he would have gotten farther,” she says. “But, at the end of the day, there was no way around it for him because, even if it was one of 1,000 reasons why he terminated her, it was related to her being married to that guy.”
The tribunal also noted that the fact that the owner implemented a policy prohibiting the hiring of spouses soon after the worker’s termination indicated that he viewed at least part of the problem was hiring spouses, adding to the inference that the worker’s marriage was a factor in her termination.
Family status a factor in termination
Since a protected ground only needs to be a factor in the termination and not the sole reason, Grapevine discriminated against the worker based on her marital status, the tribunal said. Grapevine was ordered to pay the worker more than $50,000 for lost wages, $20,000 for injury to her dignity, feelings, and self-respect, plus expenses incurred because of the discrimination.
The owner got himself in trouble by letting emotions get the better of him and coming across as nasty or petty by relying on small things like leaving work a few minutes early and cashing cheques a few days early, which hurt his credibility in the eyes of the tribunal, says Samuels.
“[The owner] kept arguing that she resigned, but the employment standards branch had already determined that she had been terminated, so he couldn't rely on it in this in this forum [the Human Rights Tribunal],” she says. “An important thing is to keep emotion out of it and to take a step back – it was just a bad situation that got made worse because of failure to communicate.”
See Martin v. Grapevine Optical and another (No. 2), 2022 BCHRT 76.