Restaurant server's condition 'never an issue,' says employer
The Human Rights Tribunal of Alberta recently dealt with a worker’s discrimination claim that her employer treated her unfairly because of her pregnancy.
According to records, she worked part-time as a server in the employer’s restaurant between July 2013 and May 2014 for around ten months.
She said that after she told the employer about her pregnancy in mid-March 2014, she experienced “adverse treatment,” including reduced hours, a change in her regular evening shifts to daytime shifts, and then termination of her employment. She alleged that her pregnancy was a factor in said adverse treatments.
In January 2014, the worker started working three evening shifts per week for the employer, with the usual shift being 4:00 pm to 10:00 pm. The employer reportedly scheduled her between January and March 2014 for three to four and occasionally five weekly shifts.
The issue arose after the worker told her employer about her pregnancy in mid-March. She said she noticed both a reduction in the number of shifts and that she was being sent home earlier. Her observation was reflected in the payroll records.
Throughout her employment, the worker primarily had evening shifts and occasional lunch shifts. She arranged her personal schedule around working evenings, and when she became pregnant, she arranged midwife and other medical appointments during the day. She said that “evening shifts were more lucrative, both because of the increased hours and due to tips in the evening.”
Around May 2014, the employer sent out the weekly schedule, and the worker saw that her schedule was changed to four straight daytime shifts. They started from 11:00 am to 4:00 pm, rather than her usual 4:00 pm to 10:00 pm schedule.
Later, the worker emailed her concerns, but the employer did not change it according to her preferences.
After a series of exchanges and increasing tension between the parties, she called senior management. She repeated the information in her email that she could work the posted schedule, but she wanted a return to her previous schedule.
The employer then advised her, “he was going to have to let her go.” Because of the background noise in the call, the worker reportedly assumed “he meant that he needed to end the conversation and they would continue the discussion later.” There was some back and forth until the worker understood that the employer meant to fire her.
The worker said she directly asked the employer if she was “being fired because she was pregnant,” and he allegedly said “he could not have the worker in the restaurant because she was eight months pregnant” and because “he could not raise his voice to her in her condition.” At that point, the worker was around five months into her pregnancy and was visibly pregnant.
Meanwhile, the employer said that the worker’s pregnancy was “never an issue” and that he “never made the statements” pinned on him.
He said the worker “called him out of the blue” and “refused to work the lunch shifts that week.” He felt the worker was “unreasonable and demanding” about the schedule, so he “decided to terminate her employment due to her attitude.”
The employer said “he was not planning on terminating her employment before their telephone conversation” but said he “felt her attitude was the last straw.”
To justify dismissal, he raised performance issues that had been ongoing but said he had not “formally advised the worker” of her conduct or had not decided if they were “significant enough that he was considering termination for them.”
Section 7 of the Alberta Human Rights Act (Act) prohibits discrimination in the area of employment on the ground of gender.
(1) No employer shall
(a) refuse to employ or refuse to continue to employ any person, or
(b) discriminate against any person with regard to employment or any term or condition of employment, because of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person.
The tribunal found that the employer “did not appear to have even a basic understanding of an employer’s obligations to a pregnant employee.”
“For example, he did not believe that maternity leave was job-protected,” it said.
He also had “never heard of reasonable notice termination pay.”
“This lack of understanding was consistent with the admission … that pregnancy was a factor in the decision to terminate the worker’s employment,” the tribunal said.
Know more about the different pregnancy rights in the workplace in Canada here.
The employer suggested the change in the worker’s schedule was because restaurant work was “inherently uncertain.”
“However, that did not explain why the average weekly hours in the 7 weeks [before she said she was pregnant] were more than the average weekly hours in the 6 weeks following the period [that she said she was pregnant],” the tribunal said.
Former employees had also testified that they had “set schedules when they worked.” All the witnesses agreed there could be slight changes “when a server was sent home,” but they said that the worker’s schedule change was more drastic “than it was before she told it she was pregnant.”
“Given the connection between the reduced hours and the timing of when the worker disclosed her pregnancy without a credible explanation from the employer, the worker’s pregnancy was a factor in the adverse treatment of reduced hours,” it said in its decision.
The tribunal explained that when the worker established a connection between her condition and “adverse treatment,” the employer needed to prove if it could “reasonably accommodate the worker to the point of undue hardship.”
“Here, employer did not put forward any evidence that it accommodated the worker or that it would be undue hardship to accommodate her pregnancy. There was no reasonable and justifiable defence here,” the tribunal said.
Thus, it favoured the worker’s discrimination claim and ordered the employer to pay $25,000 in general damages for injury to dignity and almost $10,000 in lost income.
