A former server at a Calgary pizzeria — who had her hours slashed and was eventually fired after telling her bosses she was pregnant — has been awarded $25,000 in damages by a human rights tribunal on top of more than $9,000 in lost wages.
SM worked part-time at LDV Pizza Bar between July 2013 and May 2014, a period of about 10 months. She initially worked two evening shifts per week while working part-time at another restaurant. At the end of 2013, she left that other job and started working three nights a week at LDV.
Her usual shift was from 4 p.m. to 10 p.m., and evidence showed she regularly worked three to four nights a week, and sometimes five. There was an occasional lunch shift, but her primary hours were in the evening.
Hours cut after sharing news
After she told her employer she was pregnant, SM noticed a reduction in the number of shifts — and that she was being sent home earlier. This observation was backed up in the company’s payroll records. In a seven-week period before she revealed she was pregnant, she averaged 23.27 hours per week.
In the six weeks after her announcement, she worked an average of 15.15 hours per week. Even taking into account a holiday she took in mid April, her average weekly hours were 17.5 — or 5.78 hours less than she worked before disclosing her pregnancy.
“(SM) was not a wealthy person and relied on adequate hours to make ends meet,” the Human Rights Tribunal of Alberta said. “This reduction in hours was an adverse impact.”
One termination, two versions of events
SM said she was terminated via a phone call after she sent an email to her boss on May 6. In part, that email read:
“I have been able to make arrangements for this major schedule change for this week. I had lab work on Monday and have changed my midwife appointments and have cut 2 of my teaching classes down.”
“I am and have been flexible with my schedule to the best of my abilities, but have noticed major changes the last few weeks. I have never been scheduled all day shifts before, and between doctor appointments, midwife appointments and family engagements (stepson at home and [partner] at work) this is not the best schedule for me. Ideally, I would like to have my regular schedule that has been fairly consistent over many months.”
After that email, SM said her boss texted her and they then had a phone call where she was dismissed.
Her boss, though, offered a different version of events. He denied texting her and said the email came after the phone call where he fired her. He said SM called him out of the blue on May 5 and refused to work the weekly lunch schedule. He described SM as difficult and demanding.
(The tribunal refused to hold the fact the woman didn’t have a copy of the text available against her, because the employer made no application for production of the record in advance of the hearing or even in the course of the hearing. In short, she didn’t know it was going to be relevant.)
SM said she directly asked him if she was being fired because she was pregnant. She said he responded by saying he couldn’t have her in the restaurant because she was eight month’s pregnant and he couldn’t raise his voice to her in that condition. (At that point, she was actually about five months into her pregnancy.)
Her boss, again, offered a different version of events. He said her pregnancy was never an issue and denied he made the statements she attributed to him. After she refused to work the lunch shift, he thought she was being unreasonable and demanding about the schedule.
He said he was not planning on terminating her, but her attitude was the “last straw” and he fired her on the spot.
The tribunal preferred SM’s version of events in this case.
Server showed up for work after being fired
SM decided to go to work, punch in and start her shift despite being fired over the phone. Her boss argued this conduct was odd and should affect her credibility.
But the tribunal saw no issue with it. SM was worried about her employer accusing her of abandoning her position for failing to show up as scheduled. She had requested, but not received, written notice of termination and was scheduled for multiple shifts in a row that week.
“This was a plausible explanation for her attendance at work on May 7,” it said.
The ruling
The tribunal said the employer in this case “did not appear to have even a basic understanding of an employer’s obligations to a pregnant employee.”
For example, he did not believe maternity leave was job protected nor had he ever heard of reasonable notice termination pay. It ruled that he admitted, to both SM and an employment standards officer, that the pregnancy was at least a factor in the decision to terminate her employment.
The tribunal said there was a connection between the reduced hours and the timing of when SM disclosed her pregnancy — and no credible explanation for the reduction was provided by the employer.
But while the termination, and reduction in hours, were due to her pregnancy, it found the schedule change was not. The switch from evening to lunch shifts did not happen immediately, it pointed out.
While the schedule change may have been last minute, and done with little regard for SM or her personal schedule, legislation does not protect again “general arbitrary or unfair employment practices, unless a protected ground was a factor in that treatment.”
The award
The tribunal noted that human rights damages awards are intended to restore the complainant to the position she would have been in had the discrimination not occurred. In short, they are compensatory rather than punitive.
General damages
The tribunal has cautioned against awards that are so low that they “amount to a license fee to discriminate.”
It settled on $25,000 as an appropriate award to SM for injured dignity, feelings and self-respect.
“This was an objectively serious breach of the Act,” the tribunal said. “Although it involved a relatively short period of employment, it also involved a loss of employment. Loss of employment on its own is serious.”
It said there is a “sad reality” that pregnant jobseekers often have difficulty in securing employment.
Lost wages
SM’s hourly wage was $9.05, and the tribunal said she was entitled to lost wages from the time she was terminated until the time she gave birth — which was 15 weeks. Taking into account her average hours worked, it awarded $3,158.90 in lost wages.
She also earned tips as part of her income. She showed evidence, via her tax return, that between Jan. 1 and May 5, 2014, she had a weekly average of $404.28 in tips. Over 15 weeks, that amounted to $6,064.20.
The employer argued she failed to mitigate her damages, but the tribunal didn’t accept this argument. SM was “understandably upset and stressed” following her termination. She spent a lot of time trying to get her remaining pay, her ROE and entitlement to employment insurance resolved. She did not feel mentally capable of starting a new job, and said the discrimination she experienced made it difficult for her to believe she could find a new job.
It awarded SM $9,223.10 in lost income plus pre-judgment interest.
Employer’s request for costs
Interestingly, the employer in this case sought costs and damages of $50,000, citing its legal fees and the emotional impact of answering SM.
The tribunal noted that, while it has no authority to award general damages to a respondent, it can “make any order as to costs that it considers appropriate.”
It noted there was no precedent where costs have been awarded against a successful complainant, and it declined to do so in this case as well.
For more information, see McPherson v 557466 Alberta Ltd. o/a LDV Pizza Bar, 2023 AHRC 36 (CanLII)
