The relationships between employees and employers are significant for a number of reasons. Of course, people rely on income from their jobs to provide for themselves and their families. Because of this, employers have a number of obligations they must follow when it comes to termination of employment, particularly when termination is not the result of poor performance (or “cause”). Human rights play a role in employee/employer relationships, and the Alberta Human Rights Act prohibits discrimination against employees under a list of protected grounds including gender, under which pregnancy is covered.

This means that an employer must make reasonable attempts to accommodate people who are pregnant and that people can’t be terminated because they are pregnant. When an employee feels they have been discriminated against, they can file an application for a hearing before the Alberta Human Rights Tribunal (“the Tribunal”).

In this article, we look at a recent decision from the Alberta Court of Queen’s Bench where the court found that there had been discrimination, but ordered a new hearing due to the way in which the Tribunal conducted its hearing. This case provides a great example of how the conduct of a tribunal can lead to new trials, despite finding that discrimination was likely at play.

Pregnant restaurant worker is fired

The matter arrived before the Tribunal after the employee alleged she was fired from her job at a restaurant owned by the employer because she was pregnant. The employee started work as a server in July 2013 and was terminated in May 2014. 

The events leading up to the termination were not really contested. On May 5, 2014, the employee found that her shifts had been changed. The employee had been used to working evening shifts, though not on a full-time basis since this was a part-time job. The change wasn’t ideal for the employee for two reasons. The first was that she had medical appointments related to her pregnancy during the day. The second was that evening shifts provided better income than daytime shifts. 

The employee sent an email to the employer outlining her concerns. They also had a telephone call. The employee said the email was sent before the call, but the employer said it was sent afterwards. Either way, during the call, the employer admitted to making statements about how they could not keep the employee on while pregnant, adding that he could no longer “yell” at her because of her pregnancy. The employer conceded that “the optics of the statement are poor,” but did not dispute what was said. 

Alberta Human Rights Tribunal rules against employer

In its decision, the Tribunal found that the employer had failed to accommodate the employee’s pregnancy, which is an important finding for what will happen later. It also found that the employer had discriminated against the employee on the basis of gender because of her pregnancy. The failure to accommodate was manifested in the schedule changes according to the Tribunal.

The employer appealed the decision, stating that the Tribunal should not have considered accommodation, and on the grounds that the way the hearing was conducted gave rise to “a reasonable apprehension of bias.”

The court looked at each of these grounds of appeal, first focusing on the analysis the tribunal performed on the facts. The court questioned why accommodation was introduced at all, calling it a red herring. The court wrote, 

“The question of whether failing to accommodate (the employee’s) preference to work primarily evening shifts would have been a breach of the duty to accommodate is irrelevant given that (the employer) was found to have fired her because she was pregnant.”

The court found that the Tribunal should have focused on the more serious issue of the employee’s termination, adding that an analysis of an employer’s failure to accommodate someone should only take place if accommodation is sought or considered by the parties. 

The court then looked at the Tribunal’s treatment of the employer during the hearing and whether there was a reasonable apprehension of bias. To make a conclusion on this, the court asked, “whether a fully informed observer, considering the context of the entire proceedings, would reasonably conclude that the trial judge was not impartial.”

The employer was self-represented during the hearing, and the court looked at how the employer’s objections and cross-examinations were handled, finding that evidence related to the employer’s character was admitted when it should not have been and that the tribunal did not allow the employer to properly cross-examine the employee, highlighting seven instances where the cross-examination was interfered with. The court found that each instance of interference on its own was not serious, but when all put together amounts to a reasonable apprehension of bias. 

As a result of these findings, the court ordered that the matter be heard again by the Tribunal. This is noteworthy because the court did not find that there was no discrimination. Instead, the tribunal’s conduct was enough to warrant another hearing. The case also highlights the importance of having legal representation in such matters. While it’s not clear whether the employer would have been successful with a lawyer, having a lawyer engaged may have prevented some of the behaviour that led to the need for a second trial and the expenses, time, and stress that come with it. 

Calgary Employment Lawyers representing clients in Workplace Discrimination and Human Rights Disputes 

At HMC Lawyers, our employment lawyers work with employers and employees on the legal obligations of employee/employer relationships, and the implications of wrongful or constructive dismissal. We also work with clients on matters related to human rights code complaints. Please don’t hesitate to contact us if you are an employee facing workplace harassment or discrimination, or if you are an employer who is facing or is concerned with potential claims under the Alberta Human Rights Act. We can be reached online or by phone at  1-800-480-3534 and would be happy to schedule an initial consultation today.