Canada: Discrimination In Employment Based On Civil Status: Spouses Are Not Barred From Working In A Superior-Subordinate Relationship

The Quebec Commission des relations du travail recently discussed the prohibition on discrimination in employment based on an employee's civil status.

The facts

The case1 involved an employer operating a hotel and outdoor recreational activities establishment. The complainant was hired in 2007 as a waiter at the Éco-café, one of four restaurants on the site. At the time, his spouse was also a member of the wait staff at the Éco-café.

Except for one occasion, at all times from 2007 to 2011, the complainant worked at the Éco-café on a regular full-time schedule.

In 2010, his spouse was promoted to a management position, becoming the complainant's immediate superior. One of her responsibilities included preparing the work schedules for the Éco-café and another restaurant on the site.

In June 2011, the complainant took sick leave. Around the same time, the employer retained two experts to help restructure its activities. When the complainant's sick leave ended on January 31, 2012, he was told that he could no longer work under his spouse's supervision and was assigned to the dining room. His spouse also supervised certain shifts in the dining room and he was told that he could not work there during the same hours as she did.

As a result of his re-assignment, the complainant was placed at the bottom of the seniority list for dining room staff. His schedule was thus reduced and he was assigned to the evening shift. He nonetheless returned to work for a week, during which time he realized that it would be difficult for him to make the adjustment to his new duties. The change of assignment also affected the couple's relationship, as they were now working at different times instead of sharing the same schedule and having the same time off. The complainant therefore wrote to his employer asking to be re assigned to the Éco-café, failing which he would file a complaint with the Commission des normes du travail.

At the hearing, the employer explained that the re-assignment resulted from comments made by one of the experts to the effect that "the spouses of managers are given preferential treatment at the Éco-café." The expert in question was not asked to testify at the hearing and the employer's representative confirmed that no problems had been reported to him between 2007 and 2011.

The decision

Before the Commission des relations du travail, the complainant alleged that he had been the victim of constructive dismissal and that the reason given for the re-assignment was unfounded and illegal, as it was in contravention of the Charter of Human Rights and Freedoms.2

Recalling the principles laid down by the Supreme Court of Canada in Farber,3 the administrative judge found in favour of the complainant, as the employer had substantially changed one of the essential terms of his employment contract: his position as a waiter at the Éco-café.

The administrative judge also found that there was no good and sufficient cause for the re-assignment:

[Translation]
"[88] There is no doubt in the Commission's mind that if Ms. Champagne, his immediate superior, had not been the complainant's spouse, which she was when she was promoted over him, he would never have lost his job at the Éco-café."

The administrative judge found that the employer had not provided evidence of the purported reason for its decision, which the judge considered was merely a pretext to conceal the discriminatory nature of the re-assignment. Referring to the doctrine and the Supreme Court's decision in Brossard,4 he found that the real reason for the re-assignment was discriminatory in that it infringed on the complainant's right not to be discriminated against on account of his civil status. The employer had found no fault with the complainant, except that he was the spouse of a person in authority.

Conclusion

This decision serves as a reminder to employers that a measure or decision cannot be based simply on the spousal relationship between two employees, even where their respective positions give pause for reflection. The protection offered by the Charter against discrimination based on civil status covers such situations.

Employers would be well advised to document carefully any problems actually experienced as a result of such relationships in order to have solid proof of the fairness of any measures taken.

Footnotes

1 Lafrenière et Concept éco-plein-air Le Baluchon inc., DTE 2014T-318 (CRT).

2 CQLR c C-12.

3 Farber v Royal Trust Co., [1997] 1 SCR 846.

4 Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 SCR 279.

Norton Rose Fulbright Canada LLP

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