Job eliminated during maternity leave, not discrimination

In the recent BC Human Rights Tribunal decision in Thejoisworo v. Northern Gold Foods Ltd., 2021 BCHRT 121, the Tribunal found that  Northern Gold Foods Ltd. (“Northern”) did not discriminate against Thejoisworo (the “Employee”), when it eliminated her position while she was on maternity leave and offered her a different position when she returned.

The Employee was employed as a research development technologist for Northern, a manufacturer of food products such as cereals and bars under its own brand, and for store labels and individual customers. The Employee was hired in March 2015 and in 2018 she went on maternity leave. This was her second child while employed at Northern. The parties discussed the Employee’s return from maternity leave and they decided on September 3, 2019. 

During the Employee’s maternity leave, Northern’s primary customer of 13 years moved its research and development projects in-house. The result was that there was no longer a need for the research development technologist position. On August 13, 2019, Northern advised the Employee that her previous role was eliminated, but they offered to put her in a quality control position with the same salary, but with rotating shifts, instead of her usual regular shifts.

The Employee did not return to work and resigned on September 4, 2019 on the basis that she was not prepared to accept the changes made to her position, her hours, and that she was constructively dismissed. She filed a human rights complaint claiming Northern had discriminated against her by demoting her because she took maternity leave.   

Northern applied to have the complaint dismissed. The Tribunal noted that for there to be discrimination the Employee had to prove that Northern had:

• changed her position (from research and development to quality control);
• the change was an adverse impact on employment;
• the Employee’s maternity leave was a factor in the adverse impact; and
• the maternity leave was a factor (not the only factor).

For Northern to be successful in their application to dismiss, it had to show the Employee had no reasonable prospect of proving these elements. The Employee’s “feelings” that the conduct was discriminatory would not form the basis for an inference of discrimination. There must be a factual basis to form an inference.

The Tribunal decided the change of position did have an adverse impact on employment, but the Employee did not have a reasonable chance of success because:

• Northern provided ample evidence to support its position that there was no longer any more research and development work for the Employee;
• there was still some research being performed by Northern, but it did not relate to the type of work the Employee did as it was related to manufacturing capabilities instead of product research;
• in March 2018 Northern had 154 employees and as of February 2020 that number decreased to 95 due to the lack of demand for research projects/services. The Employee was not singled out because of her maternity leave;
• there was no evidence that Northern benefitted from closing their research and development department before the Employee returned from maternity leave; and
• Northern offered to maintain her existing salary, benefits, lab/desk, and 3 months at the same schedule, suggesting there was no “ulterior motive”.

Note to Employers

Employers should always be cautious and seek legal advice when making significant changes to the employment relationship when the employee is on a protected leave such as maternity leave.  However, in this case the Employer was able to provide sufficient evidence to show that the Employee’s maternity leave was not a factor that lead to the decision to eliminate her position. 

For more information on this and other similar topics, please contact C. Ryan Chan at [email protected] or anyone else from our team listed on the Authors page.