The Alberta Human Rights Tribunal has dismissed a complaint by a former sales representative at ISCO Canada who alleged discrimination based on gender and family status after the company refused to pay her commissions during her maternity leave and denied her request for part-time work.
It ruled that the rep, R.T., failed to prove that ISCO discriminated against her under the Alberta Human Rights Act. The Tribunal concluded that the issues raised were contractual disputes better suited for resolution through employment standards or wrongful dismissal actions, rather than human rights violations.
Background
R.T. began working for ISCO in 2015, transitioning to an outside sales representative (OSR) role in 2017. Her responsibilities included developing and maintaining customer relationships, often requiring on-site visits and availability beyond standard business hours.
During her first maternity leave from November 2017 to February 2018, R.T. received prorated commissions under ISCO’s 2017 Incentive Plan, which stated that employees on authorized leave were “eligible to receive a prorated portion of the incentive compensation as determined by the Board, in its sole and absolute discretion.”
In 2019, ISCO introduced a new commission plan that was silent on commission payments during leaves of absence. When R.T. took her second maternity leave starting June 8, 2020, she did not receive commissions. She argued that this change was discriminatory and resulted in financial loss. “The complainant submits that the respondent’s refusal to pay her commissions while she was on leave resulted in financial loss,” the Tribunal noted.
R.T. also requested to work part-time during her maternity leave, proposing to either work fewer days per week or reduced hours each day. ISCO denied this request, stating it was not feasible given the demands of her OSR position, which required full-time availability and the ability to travel. The company suggested alternative part-time roles without commission but R.T. did not pursue these options.
Discrimination test
Applying the test for prima facie discrimination from Moore v British Columbia (Education), the Tribunal found that while R.T. possessed protected characteristics — gender and family status — and experienced adverse impacts, she failed to demonstrate that these characteristics were factors in ISCO’s actions.
“I find that the respondent’s practice did not single out the complainant based on a protected characteristic,” the Tribunal said. It emphasized that ISCO’s policy was to not pay commissions during any unpaid leave, regardless of the reason, and that no other employees received commissions while on unpaid leave. Comparisons to male colleagues who took paid vacation were deemed irrelevant, as those leaves were paid and therefore not analogous.
Regarding the denial of part-time work, the Tribunal found that ISCO had legitimate business reasons. The OSR role required consistent availability and on-site presence, which a part-time arrangement could not accommodate. “An employer is not required to accept an employee’s part-time work proposal that does not meet the employer’s job requirements,” the decision stated.
Constructive dismissal claim
The Tribunal also addressed R.T.’s claim of constructive dismissal, concluding that she chose to resign after disagreements over commission payments and work arrangements. “The complainant has not established adverse treatment by the respondent as her employment was not terminated, nor was she constructively dismissed,” the Tribunal found.
The Tribunal noted that issues related to unpaid wages and wrongful dismissal are more appropriately addressed through employment standards mechanisms or civil litigation. “The Complaint is clearly a contract dispute seeking unpaid wages, which should be dealt with by Employment Standards Branch or in a wrongful dismissal action in the Court of King’s Bench,” the decision stated.
In conclusion, the Tribunal dismissed the complaint, finding no evidence of discrimination based on gender or family status. “For all the above reasons, I find that the complainant has not made out her claim of discrimination in employment based on any of the allegations,” it said.
For more information, see Trafford v ISCO Canada, Inc., 2024 AHRC 129 (CanLII).
