Canadian Employment Law Today

November 17, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian HR Reporter, 2021 didn't initially hire anyone to replace her, as they assessed the research and development workload and determined it would only take up between 30 and 40 per cent of a full-time position. It eventually hired someone tempo - rarily to work part-time in Thejoisworo's role and part-time as a production supervisor. The plan was that if Thejoisworo returned within 12 to 18 months, the new employee would become a full-time production supervisor. Thejoisworo contacted Northern Gold in July 2019 to discuss her return to work. They decided on Sept. 3, which was about one month earlier than when she had initially planned to return. Thejoisworo than contact - ed the HR manager about product develop- ment projects that were underway to help her prepare. The HR manager said that a project was underway and he had been working with that customer on various projects during her leave. No need for position However, Northern Gold's primary customer moved its research and development projects to its own in-house staff, which left no such work at the B.C. facility. As a result, there was no longer any need for Thejoisworo's posi - tion. The HR manager planned a meeting to dis- cuss Thejoisworo's return, but he spoke with her on the phone first on Aug. 12. During the call, he told Thejoisworo that her research development technologist position was no longer available. The same day, a former col - league sent Thejoisworo a link to a Northern Gold job posting for a research and develop- ment technologist position for the compa- ny's U.S. facility in Oregon, which had been taking on much of the company's research and development work. Thejoisworo met with the HR manager and the operations manager on Aug. 13 and they told her that she couldn't return to her pre - vious role, but they could put her in a qual- ity control position with the same salary but with rotating shifts — her old job had regular shifts. Thejoisworo was "shocked and devas- tated" and felt she was being demoted to what amounted to an entry-level position because she took maternity leave. She told them that she felt she was being treated unfairly and wanted a position equal to her previous role. One week later, they told Thejoisworo that upper management agreed that she couldn't return to the research and development job. They said they would consider offering her a three-month adjustment period during which she could work regular shifts in the quality control position, but she would then have to work the rotating shift schedule re - quired of the position. Thejoisworo said that a rotating shift schedule wouldn't work with her daycare ar- rangement and asked for suggestions as to what she could to. According to her, they ig- nored her question, although quality control technicians had predicable schedules and the managers believed Thejoisworo could be accommodated once she started in the posi - tion. However, Thejoisworo didn't return to work and resigned from her employment by email on Sept. 4. She said that she wasn't pre - pared to accept the changes Northern Gold had made to her position and work hours and she believed that she had been construc- tively dismissed. The HR manager responded with a letter stating that Northern Gold wanted her to continue to be a part of the team. He added that the quality control position wasn't a de - motion and had the same lab, desk, co-work- ers, pay, and benefits as her previous posi- tion. He also clarified that the change wasn't because of her maternity leave but rather the company's primary customer didn't use them for product development anymore — there hadn't been any research and development work done at the B.C. facility since July 2019. Thejoisworo spoke with staff at the B.C. fa - cility, who told her they were developing and conducting trials for a product in the summer of 2019, along with new "stuff" for custom- ers. One of the staff members left at the end of July, but Thejoisworo felt the company was still doing research and development in B.C. because such projects take six to 12 months. Thejoisworo filed a human rights com - plaint claiming Northern Gold discriminat- ed against her by demoting her because she took maternity leave. Northern Gold filed an application to dismiss her complaint on the basis that she wouldn't be able to prove dis- crimination and her complaint had no rea- sonable prospect of success. The tribunal noted that for there to be dis- crimination, Thejoisworo had to prove that Northern Gold changed her position from a research and development one to a quality control one, the change was an adverse im - pact in her employment, and her maternity leave was a factor in the adverse impact. It added that someone's "feelings that a respon- dent's conduct was discriminatory will not form the basis for an inference of discrimina- tion" and there must be "a factual basis" to prove discrimination. Worker's belief of discrimination not proof The tribunal found that Thejoisworo's sched- ule in the quality control position would have changed after three months, so it was likely that she could prove that the change was an adverse impact in her employment. Thejoisworo also strongly believed that her maternity leave was a factor in the decision to change her position, the tribunal said. However, the tribunal determined that there was enough evidence to support North - ern Gold's assertion that there was no more research and development work for Thejois- woro. It was clear that much of the work at the B.C. facility dried up after the primary cus- tomer shifted to in-house research. Although there was some work by staff to whom The- joisworo talked, it wasn't related to the type of work she did — product trials were related more to testing manufacturing capability rather than research of new recipes and prod- ucts. The tribunal pointed to evidence showing that the B.C. facility had 154 employees in March 2018 when it was heavily involved in collaborative research and development ef - forts and 95 about two years later when all research had essentially stopped. The job posting Thejoisworo had been sent was for the U.S. facility, where most of that work had moved. The tribunal also found that there was no evidence that Northern Gold benefitted from removing the research and develop - ment work from the B.C. facility before The- joisworo returned because of her maternity leave rather than for business reasons. In ad- dition, management offered to keep her at her existing salary with three months at the same shift schedule — suggesting that there was no "ulterior motvie" in eliminating her position, said the tribunal in dismissing the complaint. "Overall, the evidence does not support Ms. Thejoisworo's assertion that she was singled out because of her maternity leave, rather than her R&D job being impacted be - cause she was the only employee in that role," said the tribunal. For more information, see: • Thejoisworo v. Northern Gold Foods Ltd. and others, 2021 BCHRT 121 (B.C. Human Rights Trib.). 6 | | November 17, 2021 November 17, 2021 « from ELIMINATION on page 1 Cases and Trends Cases and Trends Worker wasn't prepared to accept new position and resigned Feelings that an employer's conduct was discriminatory will not form the basis for an inference of discrimination.

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