A worker at a Lush Handmade Cosmetics store in Calgary was not discriminated against because of her Multiple Sclerosis (MS) when she was terminated following an extended pandemic-related layoff and not called back, the Human Rights Tribunal of Alberta has ruled.
BZ worked for Lush at its location in the Market Mall from October 2015 until July 2020, with a break in her employment in 2017 when she resigned to take care of her ill father. She was rehired later that year.
In 2018, BZ was diagnosed with MS. She continued in her role after the diagnosis, and used a cane at work — therefore, it was clear to others she had a disability.
The pandemic: Layoff and termination
On March 14, 2020, head office advised the store that employees with health concerns could stay home from work without consequence to their employment. Later that day, BZ advised her manager that she would take advantage of that opportunity and take time off because of her suppressed immune system.
A few days later, Lush temporarily closed its store and laid off employees as COVID-19 took hold. Under the company’s policy, employees would remain on layoff for 120 days, during which time they could be recalled.
After the 120-day period, employees would be terminated without cause and could re-apply when new positions became available. On July 31, 2020, BZ was terminated without cause after the 120-day period had passed.
In August, she phoned the store at the mall and noted that a casual worker had been promoted to full-time, even though BZ had more seniority. Lush said the casual worker was on a leave of absence prior to the COVID-19 related layoffs, and her leave ended after the employee call-back process concluded.
BZ then saw a posting on Indeed.com for a floor leading at the Market Mall location. She contacted the HR team, inquiring about the posting and the casual employee, and asking why she had not been called back.
Lush clarified that BZ had not been called back as two other floor leaders had seniority to her. The new posting for a floor leader was made based on the store’s needs after the employee call back. It advised BZ to apply for jobs she was interested in.
BZ didn’t apply for any jobs at Lush as she felt she had not been treated fairly. She felt she had been discriminated against due to her disability in being terminated and in not being called back to work.
The director’s decision
The director of the commission reviewed the complaint and dismissed it.
The director found BZ’s layoff was related to the pandemic and tenure. Employees with more seniority were kept in the roles they were in, and it found no link between her disability and the decisions by Lush.
BZ sought a review of that decision by the tribunal.
The tribunal’s ruling
The tribunal noted that individual stores did not have discretion on which employees they called back.
The employees called back to that store had more seniority than BZ. Lush noted that seniority was computed on time in the role, and not the hiring date of the employee. It also noted there was no call-back provision for employees who have been terminated. Instead, they were told to reapply for employment if they saw a position they were interested in pursuing.
It said the facts, “as a whole and considered together,” do not suggest there is a reasonable prospect of success for BZ in this case.
The director’s decision to dismiss the complaint was upheld.
For more information, see ZabihiAali v Lush Handmade Cosmetics Ltd., 2023 AHRC 54 (CanLII)
