In Silliker v Suncor Energy Inc., 2024 AHRC 91, the Alberta Human Rights Commission found that Suncor engaged in a discriminatory termination of employment, contrary to Section 7 of the Alberta Human Rights Act, when it terminated the employment of an employee on disability leave.
This case is important because Suncor’s defense in this case of restructuring is a common defense, and the damages awarded against Suncor are on the higher side of what is historically seen in Alberta human rights case law.
Facts
The following were the facts summarized by the AHRT:
- The complainant, Edeltraud Silliker, was an employee of the respondent Suncor
- Silliker worked for Suncor for about 5 years, went on maternity leave, and came back to a promotion to Project Coordinator
- She was soon promoted again to Planner
- She went on short term disability leave a year later. Shortly after she returned from that leave she went on her second maternity leave
- One month after the complainant returned from her second maternity leave, she took another leave due to mental disability
- A year and a half into this disability leave, the complainant was certified by her medical professionals to return to work, and the complainant advised of her return to work plans
- Suncor initially said it was enthusiastic about her coming back to work, but did not accept the plan proposed by the complainant’s doctor
- About a month later, Suncor advised the complainant that there was no position for her to return to, and the complainant’s employment with Suncor was terminated
- Silliker was pregnant at the time of her termination of employment, but the parties at Suncor making the decision to terminate her employment were not proven to have been aware of this
- Silliker filed a human rights complaint against Suncor, alleging the termination of her employment was due to her pregnancy and mental disability, contrary to Section 7 of the Alberta Human Rights Act.
- Suncor’s defence was that the termination was due to a restructuring and not disability or pregnancy.
Analysis / Conclusion
There was an email in evidence which suggested that Suncor had been talking about terminating Ms. Silliker’s employment during one of her earlier disability leaves.
The AHRT summarized the complainant’s argument as follows:
[24] In her submissions, the complainant’s counsel argues that the email from Singer “shows that Suncor intended to terminate Silliker because it discovered a convenient way of redistributing her workload”. Counsel further argues that “ Silliker’s workload was only redistributed because she had been on maternity and disability leave and Suncor planned to terminate her because it wanted to make the redistribution permanent” In the complainant’s view, the termination of the complainant was not because of a wider business reorganization.
Suncor argued that available work for the complainant had declined at the time of the restructure and that it did not have a job for her to return to. However, the AHRT was not persuaded by this argument for a few reasons: (1) the number of employees actually increased, with no explanation for why that was, and (2) Suncor appeared on the surface to be enthusiastically working to bring the complainant back to work, when it had already made the decision to terminate the complainant’s employment. The AHRT found this was not in compliance with the goal of accommodation stated by the SCC in Hydro-Quebec:
[57] In Hydro-Québec, the Supreme Court held that the “duty to accommodate is not to be assessed as of the time the decision to dismiss the complainant was made, but rather it is necessary that it be assessed globally in a way that takes into account the entire time the employee was absent.”[17] In this case, I assessed the duty to accommodate in light of the totality of the evidence of things that occurred during the time the complainant was absent because of her injury and not just by looking at the interactions of the parties between September and October 2019. I do not accept that the complainant lost her job because of a reorganization in the company. Rather, I find that the email from Hinger tells a story about the respondent’s plan of action in their engagement with the complainant. The plan of action was to terminate the complainant’s employment as her duties had been successfully redistributed among other staff of the respondent.
Regarding damages, the AHRT noted that damages assessments should take into account current economic reality, having the effect of modernizing historical damages awards:
[74] The current economic realities should also be considered when granting an award for general damages in human rights violation. This is because an award that might have been considered adequate in the past few years might not have any meaningful impact in current circumstances.
The AHRT ultimately awarded $40,000 in general damages for pain and suffering for injury to dignity and self respect.
The complainant was also seeking all lost wages from the date of termination of employment, but the tribunal only awarded half, reasoning as follows:
[77] […] The evidence is that complainant was pregnant at the time of her termination and that she would have proceeded to maternity leave by April 2020. The respondent would not have been paying the complainant during her maternity since the complainant could have been receiving employment insurance. Therefore, I find that the lost wages and benefits should be from the time of the termination of the complainant’s employment until April 2020. The annual value of each of the items included in the complainant’s employment compensation should be pro-rated to accord with the period mentioned […].
My Take
Employers often claim to have undergone some kind of restructure when not bringing employees back from maternity leave or disability leaves.
Sometimes there is in fact some kind of restructure. However, sometimes the claim of restructure is purely for legal defences against human rights actions and Employment Standards Code actions against employers for failing to return an employee from maternity leave to their position from prior to maternity leave.
Silliker is interesting because it illustrates that an employer cannot simply redistribute someone’s work while they are on leave and then claim it’s a restructure because the position is not needed. To be clear, that’s not exactly what Suncor was arguing it was allowed to do, but the complainant argued this is what Suncor did and that seemed to be accepted as improper by the AHRT.
Bow River Law provides these regular legal blog articles for the purposes of legal news, education and research for the public and the legal profession. These articles should be considered general information and not legal advice. If you have a legal problem, you should speak to a lawyer directly.
Bow River Law is a team of knowledgeable, skilled and experienced lawyers handling employment law, human rights (discrimination) and labour law matters. Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.
