Alberta Human Rights Information Service December 2, 2009 (Decisions summaries)
Recent tribunal decisions
The Commission has recently updated its website with the following tribunal decisions, including a tribunal decision related to a severance agreement:
Richard Burgess (on behalf of Jennifer Burgess) v. Stephen W. Huk Professional Corporation (November 16, 2009; Brenda Chomey, Tribunal Chair)
Employment practices not found to be discriminatory on the basis of gender/pregnancy or religious beliefs:
The complainant husband filed a complaint on behalf of his wife, a practicing Mormon, alleging her employment with the respondent was terminated on the basis of her pregnancy and religious beliefs. The complainant's wife was employed as a dental assistant with the respondent. At the time of her termination from employment, the complainant was approximately 14 weeks pregnant.
The complainant was reprimanded for failing to complete her duties at work. The complainant also failed to notify the respondent of an absence from her scheduled shift at work, and then failed to attend a mandatory staff meeting. The complainant and director argued she was absent from work because of a pregnancy-related visit to the hospital and was absent from the mandatory meeting because she attended church and that the respondent failed to accommodate her pregnancy and religious beliefs. The respondent argued the complainant was dismissed because of performance, and was not terminated from employment on the basis of pregnancy or religious beliefs.
The tribunal concluded that the respondent made the decision to terminate the complainant before he was aware that the complainant was pregnant. The complainant did not share pertinent information, namely her pregnancy and religious beliefs, with the respondent. The respondent was not aware of the pregnancy and religious beliefs issues and did not inquire about any such matters. The complainant did not request an accommodation based on her pregnancy or religious beliefs. There must be some onus upon the employee to share pertinent information if there is an expectation of an accommodation.
Dave Grindlay v. Calgary Telus Convention Centre (October 6, 2009; Beth Bryant, Tribunal Chair)
Severance agreement valid and enforceable and therefore the Commission has no jurisdiction to proceed with the complaint:
The complainant was employed as an event services supervisor. The complainant was reprimanded by his supervisor regarding his poor performance and evidence showed the complainant had been warned earlier regarding his performance issues. After receiving the reprimand, the complainant requested a personal day off and missed a follow-up meeting with his supervisor. The complainant sent an e-mail to his supervisor outlining his pre-existing drug and alcohol addiction, but the e-mail was sent after the respondent decided to terminate the complainant's employment.
The complainant signed the termination letter and release agreement at the termination meeting and did not take the document home for further consideration, nor did the complainant seek independent legal advice as suggested by the respondent at the termination meeting. The complainant argued he signed the release under duress and coercion.
The tribunal considered factors outlined in the Court of Queen's Bench Chow decision. The tribunal found the language of the release to be clear and understandable. The tribunal found evidence that the respondent discussed the details of the severance agreement with the complainant at the termination meeting. The tribunal further found no evidence of undue influence, duress, unconscionability, or other factors sufficient to invalidate the severance agreement.
Keith Rawleigh v. Canada Safeway Ltd. (September 29, 2009; Brenda Chomey, Tribunal Chair)
Employment practices found to be discriminatory on the basis of family status:
The complainant was employed as a general clerk by the respondent Safeway at the time he filed the human rights complaint. Safeway's policy required that general clerks work night shift rotations. The complainant's wife suffered from a hereditary degenerative eye condition that rendered her legally blind. After the complainant provided a physician's letter outlining the nature of his wife's condition, he was exempt from working night shifts for about two years, so that he could be at home to attend to his wife. Changes in the permanent night shift crew resulted in the complainant being asked again to work night shifts. Safeway believed the complainant's wife was cured and they did not recognize second-party illness as a basis for night shift exemption. The complainant was offered a lower paying full-time position as cashier so that he would not be required to work night shifts. The complainant requested a transfer to another store for positions not requiring work on night shifts. After Safeway refused to transfer the complainant to another store, he requested to be reclassified as a part-time employee. The complainant alleged he was discriminated against on the basis of family status.
Safeway argued its night shift policy was a bona fide occupational requirement and that its efforts to accommodate the complainant were limited by provisions in the collective agreement regarding what positions they could consider for him.
The tribunal held the complainant established a prima facie case of discrimination on the grounds of family status. The definition of family status under the Act is broad and specifies that family status "means the status of being related to another person by blood, marriage or adoption." The tribunal also found Safeway's policy regarding night shift assignments and rotation formed part of the collective agreement and was prima facie neutral, and was based on genuine business reasons. However, the implementation of this policy in the complainant's unique circumstances rendered this policy discriminatory. In determining whether Safeway's night-shift policy was a bona fide occupational requirement, the tribunal applied the three-part test enunciated by the Supreme Court of Canada in Meiorin. The tribunal found that the respondent did not demonstrate that accommodating the needs of the complainant would cause undue hardship. Upon receipt of the submissions relating only to the complainant's salary, pension and benefits loss, a decision encompassing all of the categories of remedy sought will be rendered.
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