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Queen's University
 

Cavanaugh v. Sea to Sky Hotel

Cavanaugh v. Sea to Sky Hotel (No. 2) [2010] B.C.H.R.T.D. No. 209

Facts

Christan Cavanaugh was hired for the position of Banquet Manager at Sea to Sky Hotel in late November 2008, a job requiring long and unpredictable hours. At the job interview, she told her boss (the General Manager) that she had a one-year old child but that she had child care arrangements (third-party and family help) during the week and that the father took the baby on weekends.  

For the first three months, she was on probation. The employer had a number of concerns with her performance during this time, including dress code, demeanour, timeliness, all of which were raised with Cavanaugh informally. The General Manager asked the manager of the Beer and Wine store to provide Cavanaugh with informal training without letting her know that he had requested this intervention. After three months, management decided to continue to employ Cavanaugh despite her performance issues which, they hoped,  would likely improve over time.  

On March 1st, Cavanaugh organized a banquet at the hotel but left work to pick up her daughter in the middle of "take-down" and without first informing her superiors.  She had, however,  arranged for the Chef to do the take-down (clearing away tables etc...). After picking up her daughter and doing some grocery shopping, Cavanaugh returned to work to check on the take-down process. The General Manager found her in the kitchen, talking to the Chef and ordered her to do her job.  She complied.

On March 3rd, the General Manager had a meeting with Ms. Cavanaugh. He shared his concerns about leaving work without authorization and bringing a baby to work. He asked her why the child's father hadn't been taking take of the child that day (since it was a weekend night).  When she told him that her personal circumstances had changed, he demanded to know why she had not informed him.

On March 4th, Ms. Cavanaugh met with the General Manager again. This time, he questioned her ability to fulfill her job duties, which required 20-hour a day availability. Ms. Cavanaugh responded that her daughter was a priority for her, that she could not commit to 20-hour days, but that she had fulfilled her duties thus far and would continue to fulfill them in the future (in person or not).   After this meeting, the General Manager met with other managers to discuss the situation; everyone agreed that Cavanaugh was better suited to a part-time job with specified hours.

On March 8th,  Ms. Cavanaugh was terminated when she refused to accept "more suitable and specified part-time work" at the hotel.

Issues

  1. Did Ms. Cavanaugh's termination amount to prima facie discrimination?
  2. Did the employer establish a BFOR?

Decisions

  1. Yes
  2. No

Reasons

  1. The Tribunal used the following traditional three-part test for prima facie discrimination.  It found that Cavanaugh 1) established that she was a member of a group protected under the enumerated ground of family status; 2) that she experienced some adverse effect in her employment, in the form of termination and 3) that family status was a factor in the adverse treatment. Three facts made the third point clear 1) the Hotel continued to employ Cavanaugh after her probationary period (despite performance issues) which shows that the March 1st incident was key 2) the General Manager showed great concern about the change in child-care arrangements 3) requiring Cavanaugh to accept an alternative position with "more structured hours" and "less demanding work is consistent with the interpretation that the employer was concerned the single mother's childcare commitments required her to take on a less challenging role at work.
  2. The Respondent did not try to justify the discrimination; it simply denied that family status had anything to do with its decision to terminate Cavanaugh. Had it tried to justify the termination based on family status, it would have failed, ruled the tribunal, to meet the BFOR test because it had no proof that Cavanaugh could not fulfil her requirements and it made no attempt to accommodate her in the workplace.    

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000