Canadian Employment Law Today

Employer constructively dismissed employee after workplace assault Muslim owner discriminated against non-Muslim worker by trying to transfer her after attack by Muslim co-worker BY JEFFREY R. SMITH AN ALBERTA employer must pay 24 months' wages and another $15,000 in dam- ages to an employee who was transferred following an assault by a co-worker who shared the same religion as the owner, the Alberta Human Rights Tribunal has ruled. Aleksandra Andric was general manager of a hair salon in the West Edmonton Mall operated by Spasation. She was hired in 2000 as a receptionist and promoted to general manager in 2009. During her time with Spa- sation, Andric was considered a high per- forming employee who got along well with customers and had strong product sales. On March 8, 2010, Andric was talking on the telephone at the spa when a co-worker came up behind her, grabbed her hair and punched her in the face. Police were called and a stylist working at the time said she saw the co-worker on top of Andric punching her. e stylist also said the co-worker's hus- band tried to attack Andric as well but was held back. After the altercation ended, the co-worker and her husband left the salon, yelling at Andric "this is not over, you don't mess with Allah." e owner of Spasation, Hasoon Rahal, met with Andric at the Spasation head office four days later and told her she was being transferred to another Spasation location "due to recent violent conflict" and "for busi- ness reasons." He also noted it would be safer for Andric at another location. Andric said she would rather not transfer as she felt she would be safer at the West Edmonton Mall location because she would be with people and a location with which she was familiar. In addition, the attacker and her husband had been banned from the mall. Rahal mentioned that the co-worker who attacked Andric and her husband were friends who attended the same mosque, and when Andric requested he talk to the police about the incident, Rahal said "I know her husband's family, we're from the same com- munity, we go to the same mosque. Muslims must respect each other." Rahal also sug- gested Andric was responsible for the attack and told her "you don't look too bad." e employee who attacked Andric was fired, but some months later was hired to work at another Spasation location. Andric filed a human rights complaint, claiming Spasation decided to transfer her because of the common religion ancestry, or place of origin shared by Rahal and the employee who attacked her, and this transfer constituted constructive dismissal. Rahal denied having any interaction with the employee who assaulted Andric and her husband, but later said he knew them and had spoken to the husband on the phone. e tribunal found Rahal's explanations were often contradictory and therefore had little credibility. As a result, the evidence led it to believe Rahal had contact with the em- ployee who assaulted Andric and that em- ployee's husband. e tribunal also found Rahal's statements regarding the mosque and respecting other Muslims indicated the decision to transfer Andric was motivated "at least in part" by the fact that Andric wasn't a Muslim like Ra- hal, the attacker, and the attacker's husband. ere was also no mention in Rahal's expla- nation to Andric that the transfer was lat- eral or better. Andric didn't know anything about her new location, responsibilities or pay, which was an adverse impact from the decision. e tribunal found Andric's transfer wasn't rationally connected to job perfor- mance, business reasons — it was only a week after the assault and the business hadn't changed — or safety. Spasation could offer no reasonable explanation for the transfer, said the tribunal. As a result, there was no bona fide occupational requirement for the transfer that could override the adverse im- pact Andric suffered from being removed from a location where she had worked for 10 years. e tribunal noted Andric felt demeaned by Spasation's treatment of her — Andric reported this treatment felt worse than the actual physical attack and it "profoundly im- pacted" her. Spasation was ordered to pay Andric the equivalent of 24 months' wages, including a top-up of her earnings at a subsequent em- ployer where she earned less starting in No- vember 2010. In addition, Spasation was on the hook for $15,000 in damages for distress, injury and loss of dignity. "e unilateral transfer after the ten-year employment relationship negatively impact- ed Ms. Andric's self-esteem," said the tribu- nal. "(Andric) felt as though (Spasation) was justifying or tolerating the physical injuries inflicted on her and then penalizing her be- cause she was not a Muslim." For more information see: • Andric v. 585105 Alberta Ltd., 2015 Car- swellAlta 2374 (Alta. Human Rights Trib.). Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as employees on social media, just cause for dismissal, and severance settlements. You can view the blog at www.employmentlawtoday.com. The owner said he was from the same community as the attacker and her spouse and must respect them

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