Richard Burgess (on behalf of Jennifer Burgess) v. Stephen W. Huk Professional Corporation
Decision Date: November 16, 2009
Decision Maker: Brenda Chomey
Decision Level: Tribunal
Grounds: gender, pregnancy, religious beliefs
Areas: employment practices
Keywords: Discrimination – Grounds – Gender – Pregnancy – Religious Beliefs - Area – Employment Practices – Complainant dental assistant terminated from employment after receiving four reprimand letters – Complainant pregnant at the time of termination – Reprimands issued after complainant failed to sterilize dental instruments, was absent from work without notice or explanation, and failed to attend scheduled meeting with respondent – Complainant argued her absence was because of her pregnancy and because she had to attend church and that the respondent failed to accommodate her – Tribunal found respondent had no knowledge of complainant’s pregnancy nor of her religious belief – Accommodation requires complainant to inform employer of accommodation needs where those needs are not obvious – Complainant failed to establish a prima facie case – Complainant failed to show her pregnancy and religious beliefs were factors in her dismissal from employment – Tribunal did not award costs against the complainant – No evidence of complainant misconduct in bringing the complaint - Complaint dismissed
Summary:
The complainant husband brought a complaint on behalf of his wife alleging her employment with the respondent was terminated on the basis of her pregnancy and on the basis of her religious beliefs. The complainant’s wife, a practicing Mormon, was employed as a dental assistant with the respondent. The respondent’s employment policies were outlined in an Employee’s handbook. At the time of her termination from employment, the complainant was approximately 14 weeks pregnant. There was evidence the complainant on several occasions had to leave a patient when she felt ill due to her pregnancy. The complainant was reprimanded for failing to place dirty instruments into a sterilizer at the end of a day which caused postponement or delay to patients. The complainant was subsequently reprimanded three more times: a second time after she failed to attend a scheduled meeting with her supervisor, a third time because the complainant failed to notify the respondent of an absence from the complainant’s scheduled shift at work, and a fourth reprimand for failing to attend a mandatory staff meeting. The complainant and director argued the respondent had knowledge of her pregnancy and of the requirements of her Mormon faith. The complainant and director argued she was absent from work because of a pregnancy-related visit to the hospital and was absent from the mandatory meeting because she attended church, and that the respondent failed to accommodate her pregnancy and her religious beliefs. The respondent argued the complainant was dismissed because of performance and was not terminated from employment on the basis of pregnancy or religious beliefs. The respondent sought costs against the complainant. HELD: Complaint dismissed. The complainant failed to establish a prima case of discrimination, particularly failing to show her pregnancy or religious beliefs were factors in the termination of her employment with the respondent. After noting some discrepancies in witness testimony, the Tribunal drew some inferences based on circumstantial evidence presented in order to determine whether discrimination had occurred. The applicable test is whether “an inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypothesis.” The Tribunal found the complainant’s absence without notice to the respondent did not warrant any inquiry on the respondent’s part to find out why she was not at work. There had been no history of absenteeism or a marked change in the complainant’s behaviour that would lead or necessitate the respondent to inquire further as to the reason for these absences. Employees get sick and attend the hospital for a multitude of reasons. If the employee chooses not to share this information, and there is no reason for the employer to inquire further, then there can be no reasonable expectation for an accommodation. The Tribunal does not find that the complainant’s medical absence from work necessitated an accommodation based on the information, or in this case the lack of information, that was provided to the employer at that time. The Tribunal took into account the degree of interaction and respondent’s work environment in finding the respondent was not aware of the complainant’s pregnancy prior to the termination of the complainant’s employment. The complainant, at no time, shared pertinent information, namely her pregnancy and religious beliefs, with the respondent. There was no reason for the respondent to seek out this information prior to the complainant’s termination. The complainant at no time requested an accommodation based on her pregnancy or religious beliefs. There must be some onus upon the employee to share pertinent information if there is an expectation of an accommodation. The employer cannot be expected to operate in isolation. The employee has to provide at least some cursory information regarding their needs, if there is to be an expectation of accommodation. The Tribunal did not order costs against the complainant. The reasoning behind the complainant filing a human rights complaint demonstrated no misconduct or malicious action on her part.
Cases Considered: Wilson v. Transparent Glazing Systems (No. 4), 2008 BCHRT 50; Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536; Michael David Berridge v. City of Calgary (2007), 61 CHRRD/168 (Alta. HRP); Shelly Weimer v. Richards Packaging Inc. (2008), s2005/12/0276 (Alta. HRP); Willems-Wilson v. Allbright Drycleaners Ltd [1997] B.C.H.R.T.D. No. 26; Sylvester v. British Columbia Society of Male Survivors of Sexual Abuse [2002] B.C.H.R.T.D. No.14; Brooks v. Canada Safeway Ltd. (1989) 1 S.C.R. 1219, [1989] S.C.J. 42 at para. 28; Vestad v. Seashell Ventures Inc., 2001 BCHRT 38 at para. 40; Hart v. Bossini Handbags Inc., [1995] B.C.C.H.R.D. No. 18 at para 54; Maller v. The Keg Restaurant, 2000 BCHRT 8 at para. 50; Skytte v. Danroth, 2000 BCHRT 61 at para. 25; O’Connor v. Town Taxi, 2000 BCHRT at para 55; Morris v. BC Rail, 2003 BCHRT 14 at para 183; Nahal v. Globe Foundry Ltd., [1993] C.H.H.R. No. 28 [1993] 21 C.H.R.R D/136 para 55; Michael David Berridge v. City of Calgary, Alberta Human Rights Panel Decision – September 5, 2007; Anita Sharma v. Rebecca Masuhara and Neova Technologies, 2009 BCHRT 347 at para. 30; Paetz v. Maglio Building Centre, 2007 BCHRT 357 at para 32; Coady v. Memorial University (2004) Newfoundland and Labrador Supreme Court Trial Court Division N.J. No. 149 at para 41
Statutes Considered: Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, s. 7(1)(a), 7(1)(b)
Miscellaneous Cases Considered: Beatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987) at 142; The Law of Human Rights in Canada. Canada Law Book 2008
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