Written by: Kyle Hunter In Trafford v ISCO Canada Inc., 2024 AHRC 149, the Alberta Human Rights Commission considered an employer’s obligation to provide part-time work and commissions to an employee that was on an unpaid leave. The complainant was a sales representative for ISCO Canada Inc. whose compensation was, in part, commission-based and who had gone on a parental leave. While on leave, the employer declined to pay her any commissions despite having paid commissions to her on a prior parental leave. Importantly, the employer’s prior commission plan allowed for some discretion in the payment of commissions to employees on leave whereas the commission plan in place at the relevant time contained no such discretionary language. The employee resigned and brought a complaint under the Alberta Human Rights Act. The Tribunal relied upon the three-part test for prima facie discrimination established in Moore v. British Columbia (Ministry of Education), 2012 SCC 61: The employee has a characteristic that is protected from discrimination; The employee experienced an adverse impact; and The protected characteristic was a factor in the adverse impact. It was agreed by the parties that the employee’s gender and family status were protected from discrimination. The Tribunal accepted that the decision to not provide commissions or the opportunity for part-time work during a leave was an adverse impact. However, the third part of the Moore test was not made out. There was evidence that the employer did not pay anyone their commissions during any employee’s unpaid leave since their commission program had been changed. Therefore, the Tribunal decided that the protected characteristic was not a factor in the adverse impact. It was a legal issue of contractual interpretation and not discrimination. A collateral issue at the Tribunal Hearing was the employee’s request for part time work during her parental leave. The Tribunal decided that an employer is not required to accept a part-time work proposal that does not meet their job requirements from an employee on a job-protected leave. The Tribunal struggled to accept that an employee on a parental leave would require part-time work as an accommodation of that leave. In sum, parental leave is already an accommodation and the Tribunal struggled to find any logic in the assertion that the employer had to accommodate the accommodation. Key Takeaways Part-time work while on leave Employers do not have an obligation to accommodate a request by an employee on a leave for part-time work if it does not meet their requirements. Commission pay while on leave Whether or not commissions should be paid while an employee is on leave should properly be a question of contractual interpretation. If there is discretion to pay commissions to employees on leave and those commissions are not paid to a specific employee in specific circumstances that are protected by the Human Rights Act then there could be grounds for a successful Human Rights Complaint. However, if there is no discretion to pay commissions to employees on leave and those commissions are never paid then the question becomes one of contractual interpretation and not a question of discrimination. Employers whose employees are paid commissions, either fully or in part, should be careful about the written terms of those commission plans and should ensure that commissions are not paid to employees on leave or otherwise not actively working for the employer when the commissions would have ordinarily become payable. Employers should also ensure that their commission plans (and all of their other policies) are enforced uniformly across all employees and not on a case by case basis as the latter invites a finding that a human rights protected ground was a factor in the employer’s decision. If you have any questions regarding accommodation related issues, please contact a member of our Labour & Employment practice group.