Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2018 More Cases had two employees working under her. In January 2017, one of Crockart's em- ployees quit and Skeena decided not to hire a replacement since revenue was down in Kitimat by then — Rio Tinto's moderniza- tion project had wrapped up and rentals at the Kitimat branch were decreasing steadily. By the end of 2017, revenues in Kitimat were only six per cent of 2016's and the second employee had left, leaving Crockart the only employee at the branch. However, she was considered a good employee and received a raise in August 2017. In September 2017, Crockart told co- workers she was pregnant after she missed a day due to nausea. She went on vacation shortly afterwards and during that time, employees from the Terrace branch covered Kitimat business. e company checked the list for car reservations for the Kitimat branch and discovered that for the six weeks leading up to Christmas 2017, there wasn't a single reservation. Skeena determined the Kitimat branch was no longer economically feasible and decided to close it. Office closure after declining revenues Skeena's vice-president told Crockart in mid-November that the Kitimat branch was going to be shuttered and Crockart's employment was being terminated with three weeks' working notice. However, an email from the vice-president provided slightly different information, indicating the Kitimat branch would remain open but un- staffed. If there was a reservation for three days or longer, Skeena would send an em- ployee from Terrace to do the work. Crockart thought Skeena should offer her employment at the Terrace office rather than terminate her employment, as the company was willing to send an employee from Ter- race to Kitimat but not have her come to Ter- race. However, the vice-president said that it wouldn't be safe for her to commute to Ter- race in the winter. Skeena's vice-president had purchased the building in which the Kitimat office was lo- cated in September 2017 — which Crockart believed meant he was investing in the Kiti- mat part of the business — but the branch closed for good in March 2018. Crockart filed a human rights complaint, claiming her pregnancy was a factor in her termination as Skeena took the opportunity to avoid hiring and training a replacement for her and paying her medical benefits while on maternity leave. She said Skeena was fine with other employees driving from Terrace to Kitimat in the winter, and she herself frequently drove to Terrace to work at that office, exchange vehicles, or get maintenance done before she was pregnant. She also argued that the company couldn't have truly known how many reservations there would be leading up to Christmas at the time of her termination, as reservations can be made at any time online and are dif- ficult to project. Timing of announcement was a consideration e tribunal noted that while Crockart claimed her pregnancy was a factor in the termination of her employment, the basis for her argument was that Skeena gave her notice of termination within two months from when she announced that she was pregnant. e tribunal acknowledged that the timing of the dismissal notice "could give rise to a reasonable inference that Ms. Crockart's pregnancy was a factor in the ad- verse treatment." However, the tribunal found that the evi- dence showed there was a significant drop in revenue for the Kitimat office in 2016 and 2017 and there was a "dearth of reservations" in late 2017 at the time of her dismissal. Crockart argued that there was no need to close the office due to potential rentals made online, but this was speculation, said the tri- bunal. e tribunal also found that Crockart's argument that she should have been trans- ferred her to the Terrace office but wasn't because of her pregnancy was also specu- lation. ere was no evidence the Terrace office wasn't fully staffed and there was any position available for Crockart. e decision was to close the Kitimat office and dismiss its staff — which consisted only of Crockart by then, said the tribunal. "(Skeena) has reduced its staff by one; the person employed in the office it was closing," the tribunal said. "Ms. Crockart points to no requirement that she be able to 'bump' em- ployees in Terrace to have (Skeena) achieve the staff reduction it sought." e tribunal determined the evidence showed the Kitimat office was no longer fi- nancially sustainable and there was reason to close it. Any remaining business in Kiti- mat could be serviced by the Terrace office — as it was before the Kitimat office opened in 2011 — and the office closure was reason- ably accompanied by a reduction in staff. Crockart was unable to prove her pregnancy played any role in the decision to terminate her employment and accordingly the tribu- nal dismissed her complaint. For more information see: • Crockart v. Skeena Rent-A-Car, 2018 Car- swellBC 2233 (B.C. Human Rights Trib.). Revenues, reservations were down at Kitimat office « from OFFICE CLOSURE on page 1 group of firefighters referred as "Type 1" — required to meet rigorous fitness standards in order to maintain their employment and perform their tasks safely and efficiently. At issue was a fitness test which used a "cut score" (a minimum time) within which pro- spective and existing employees had to com- plete a series of physical tests to qualify as a Type 1 firefighter. e arbitrator concluded that the cut score was arbitrary and although the fitness test was a reasonable work re- quirement, there was no evidence justifying the use of the cut score. e Court of Appeal agreed and cautioned that a timed fitness test based upon physical attributes runs the risk of being prima facie discriminatory. us, a universally applied minimum standard may be viewed as arbitrary unless the employer has clear evidence that individ- uals who fail to meet the minimum time can- not perform their work safely and efficiently. Just as standardized tests in school can be ineffective in determining a student's true abilities, standardized physical fitness tests can also be ineffective in assessing an em- ployee's true capabilities. A fitness evalua- tion specifically tailored to the requirements of the position will therefore be more easy to justify than a standardized one. For employees who cannot meet certain fit- ness requirements, the employer will need to consider whether the employee can be accom- modated. e employer will want to consider the employee's ability to contribute meaning- fully to the workplace and business needs — the duty to accommodate does not require that the employer create an entirely new position. e content of accommodation will ul- timately depend on the specific workplace. However, common measures to facilitate participation in the workplace include mod- ification or reallocation of duties, reduction in hours, or re-assignment. It is also im- portant to bear in mind that the employer's duty is one of reasonable accommodation — perfection is not the standard. Further, an employee has a shared duty to assist in the search for reasonable accommodation. See SGEU v. Saskatchewan (Environment), 2018 CarswellSask 303 (Sask. C.A.). Leah Schatz is a partner with MLT Aikins LLP in Saskatoon. She can be reached at (306) 975-7144 or lschatz@ mltaikins.com. Arbitrary standards « from ASK AN EXPERT on page 2

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