In Trafford v ISCO Canada Inc., 2024 AHRC 149, the Alberta Human Rights Commission denied a gender discrimination complaint of a complainant who was on maternity leave. She did not receive commissions and was not allowed to work part time while on maternity leave.
This case is significant because it is a tribunal-level decision that is quite favorable to employers.
Facts
The following were some of the pertinent facts summarized by the Alberta Human Rights Tribunal:
- The complainant Rebekah Trafford had been an employee of ISCO Canada Inc.
- The complainant worked for ISCO as an outside sales representative who earned commissions on sales
- When the complainant took her first maternity leave, the incentive plan at that time indicated that employees on authorized leave would receive a pro-rated portion of their annual commissions
- When the complainant took her second maternity leave, the incentive plan at that time was silent on whether employees on authorized leave would receive pro-rated commissions
- ISCO did not pay her commissions on the second leave
- ISCO’s explanation for not paying her was that it did not pay any employee during an unpaid leave
- The complainant also requested that she be allowed to work part-time during her second leave. ISCO denied the request. Some of the relevant facts were:
- She had been allowed to work part-time during her first maternity leave
- When she was about to go on her second mat leave, she proposed she would take 6-8 weeks off unpaid, and then work part time
- ISCO did not agree to the part time request, as it did not think it was in their best interests. Specifically, (1) she would not be able to do some of her core job duties like travelling for work and being available 24 hours a day for clients, (2) it was not feasible over an uncertain period, and (3) it was a financial and staffing hardship for the company, etc.
- The complainant refused to stop answering emails while on leave, so ISCO took away her laptop and cellphone
- The complainant resigned her employment
- There was no evidence of any other employee receiving commissions while on unpaid leave
- The complainant filed a complaint for discrimination in the workplace on the basis of gender and family status, under the Alberta Human Rights Act
- The complainant was arguing that the lack of commissions and the refusal of part time work during maternity leave were discrimination, and that when these things led her to resign it was a constructive dismissal.
Analysis / Conclusion
The Alberta Human Rights Tribunal considered the facts regarding the commission and accepted the respondent’s explanation, that it did not pay any employee on unpaid leave. The Tribunal noted,
[38] I find that the respondent’s practice did not single out the complainant based on a protected characteristic. …
The Tribunal did not consider that ISCO’s refusal to allow her to work part-time while on maternity leave to be discrimination either. The reasoning was that the arrangement would only have benefitted her and an employer is not obligated to accept a part-time work proposal that does not meet its job requirements:
[55] I find that the complainant has not made out a case that the refusal to work part-time was prima facie discrimination. She requested part-time work, but the respondent, after considering the request, found that it would not meet their business needs. This was clearly communicated to the complainant after due consideration of her request. She was, however, permitted to return to work full-time after 6-8 weeks.
[56] The Director submits that the respondent had a duty to accommodate the complainant’s request for part-time work during her parental leave and the respondent’s failure to allow the complainant to work part-time while on unpaid leave establishes discrimination in employment contrary to section 7 of the Act. I disagree. An employer is not required to accept an employee’s part-time work proposal that does not meet the employer’s job requirements. An employer is entitled to get its work done in exchange for pay.
[…]
[58] […] There is no evidence, medical or otherwise, that the complainant required part-time work to accommodate her family status or pregnancy.
My Take
This case is would be considered a win for employers, without a doubt.
I was not surprised by the Tribunal’s decision that the employer was not required allow the complainant to work part time during her maternity leave, because the unpaid leave itself is an accepted accommodation.
I think the commissions is more controversial. The Tribunal’s reasoning was essentially that it was not discriminatory because everyone on unpaid leave is treated the same way. I would not know the exact industry average percentages, but a high proportion of unpaid leaves are related to human rights grounds such as especially maternity, physical disability, and mental disability. I think there would be a fair argument that a policy denying pro-rated commissions during any unpaid leave is going to disproportionately affect people whose leaves are tied to those human rights grounds.
In any event, its an interesting case and worth being aware of for both employers and employees.
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