Canadian Employment Law Today

September 13, 2017

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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©2017 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Did Save on Foods discriminate against the employee when she was denied entry into the leadership program and the promotion given to the co-worker? OR Was there no discrimination? IF YOU SAID there was no discrimination, you're right. e tribunal found that Case met two of the three elements for prima facie discrimination — she was of First Na- tions origin, a potential prohibited ground for discrimination; and she received ad- verse treatment, which was the denial of an opportunity to participate in the Retail Leadership Excellence program and get a shot at a promotion. However, on the third element required for discrimination — a nexus between the prohibited grounds and the adverse treatment — the tribunal found there was no evidence to support it. e tribunal found that while there was some dispute on what the assistant manager told Case regarding the leadership program, there was no doubt about the fact the appli- cation deadline for the program was back in February 2016 and it was too late for Case to apply for that year's program. e tribunal also found credence in the company's assertion that the decisions on what employees were accepted into the pro- gram and when it was off ered were made at the corporate level by upper management who didn't know the applicants. No one who was involved in the decision knew that Case wanted to apply or that she was of First Nations background. Only management at Case's store knew her colour and race, and they had no input into the leadership pro- gram, the tribunal said. e tribunal determined Case's complaint had no prospect for success and dismissed it. For more information see: • Case v. Save on Foods, 2017 CarswellBC 1674 (B.C. Human Rights Trib.). Employee frozen out of leadership program THIS INSTALMENT of You Make the Call involves a grocery store employee who complained she was discriminated against when she didn't get a promotion. Laura Case was a general clerk at a Save on Foods grocery store in Kamloops, B.C. She worked in various areas of the store, but most often in the deli department. In April 2016, Case began taking a series of courses and training programs off ered by Save on Foods as part of what it called Team Excellence Levels. e courses included safety-related topics, best practices, and other information that were designed to help employees become more successful at their current jobs and prepare them for advance- ment. Each course concluded with an exam. Case completed all of the courses by Au- gust 2016 and talked to an assistant manager, who — according to Case — told her if she completed additional development courses online to go with the Team Excellence Lev- els, she could enter the Retail Leadership Excellence Program. is program was a 12- week training program designed to identify and assist eligible employees in being suc- cessful in managerial roles. e program ran irregularly according to demand and had run in 2012, 2015 and 2016. However, after Case took the additional development course, the assistant manager told her the Retail Leadership Excellence program had already been off ered in 2016 — posters had been posted in the store earlier in the year and email communications had been sent out with the application deadlines — and there were no plans to run it in 2017. Case later found out that a co-worker in the deli department had received a promo- tion to the position of department manager. e co-worker — who was a diff erent race from Case, a First Nations person — didn't complete the Team Excellence Levels and Case felt she was less qualifi ed with less se- niority. Case was also told by other employ- ees that the co-worker had been off ered the leadership program, though this was appar- ently not the case. Case fi led a complaint of discrimination in employment based on colour and race. She said Save on Foods failed to notify her about the Retail Leadership Program when it was off ered, though her manager had approved her goal for the program. e store then pro- moted someone else who was less qualifi ed and hadn't taken as much training but was of a diff erent race. Save on Foods argued that neither the as- sistant manager or manager had any input into when the Retail Leadership program was off ered and senior management at the corporate level made those decisions. e deadline for receipt of applications was neutral and had nothing to do with race or any other factor, and this deadline had been communicated clearly through posters and emails in the store. The deadline for the leadership program had been months earlier

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