First Reference company logo

First Reference Talks

News and Discussions on Payroll, HR & Employment Law

decorative image

Maciel vs. Fashion Coiffures: pregnancy and employer’s continued obligation under the “Code”

law scaleThe applicant, Jessica Maciel, was just over four months pregnant when she applied for, and was hired as a receptionist by the respondents, Fashion Coiffures Ltd. and Crystal Coiffures Ltd.

The applicant alleged that she was terminated when on her first day of work she disclosed to her manager, Ms. Cinzia Conforti, that she was pregnant.

In contrast, the respondents attributed her termination to the applicant’s alleged request to work part-time, although she had been newly hired for a full-time position.

A hearing was held in-person on June 8 and 10, 2009.

Background

Many of the undisputed facts included that the hiring process was uneventful and that the applicant had been offered a full-time position with the employers.

The applicant began work on the morning of August 11, 2008. The applicant testified that she believed her manager, Ms. Conforti, was unaware of her pregnancy at the time of her hiring. [i]

That morning the applicant disclosed to the co-worker who was training her that she was pregnant. The co-worker suggested that she speak with Ms. Conforti as in the past there had been a problem with another employee who had disclosed her pregnancy to Ms. Conforti. [ii]

The applicant testified that in a meeting which took place with Ms. Conforti, she disclosed that she was pregnant. Ms. Conforti congratulated her, but also indicated that she had concerns with the applicant’s long-term availability. To allay Ms. Conforti’s concerns, the applicant offered to try working part-time to see how it worked out. [iii] Ms. Conforti indicated that she would contact “head office” and inform the applicant as to their response. Soon after returning to work, Ms. Conforti had her leave, although still indicating that the applicant would be contacted with a decision from head office the next day.

The next day the applicant was contacted by Ms. Conforti and was told that she could not fill the receptionist position, due to her “availability”. Ms. Conforti elaborated by saying that the applicant would be going off on maternity leave. When the applicant replied that she could not be fired for being pregnant, Ms. Conforti indicated that it was not because she was pregnant, but because she was only going to be there part-time. [iv]

The respondents’ version differs. On the morning of August 11, 2008 the applicant had inquired of the co-worker whether or not there was part-time work available. The co-worker responded that she did not know.[v] She told the applicant to inquire upstairs. Shortly after returning from upstairs the applicant left the premises. According to the respondents, during their conversation, the applicant had requested that she work part-time instead of the full-time position for which she had been hired. Ms. Conforti did not inquire as to why. Ms. Conforti also testified that the applicant had not advised her of her pregnancy. Further, Ms. Conforti testified that she did not make any inquiries as to what the applicant meant by part-time. As Ms. Conforti had no part-time available the applicant was subsequently terminated.

Analysis

Although the accounts differed, and in spite of the testimony from the co-worker and Ms. Conforti, clearly contradicted the applicant’s account, the Tribunal concluded that among other things, it simply did not stand to reason that the applicant would apply for a full-time position and then, on the first day of work, change her mind and request part-time work.

In addition, the respondent had admitted that after the applicant had allegedly requested part-time work, Ms. Conforti did not inquire any further as to how many hours that may or may not have constituted. In point of fact there was no investigation to clarify what the applicant meant by part-time work, or why she had suddenly changed her mind.

Throughout the respondent’s testimony she denied knowledge of the applicant’s pregnancy until receiving the application at the Human Rights Tribunal of Ontario.

The Tribunal found that as the respondents had failed to prove a non-discriminatory explanation for the termination, on a balance of probabilities, the applicant’s pregnancy was a factor, likely the only factor, in the respondents’ decision to terminate her employment. [vi]

[47] The Tribunal’s remedial powers are set out in section 45.2 of the Code:

45.2 On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

  1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
  2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
  3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

Damages

Among other damages, the respondents were jointly and severally ordered to pay the applicant approximately $9,000.00 as compensation for loss of income, approximately $11,000.00 for her loss of maternity leave and parental leave, and $15,000.00 as compensation for injury to her dignity, feelings and self-respect. Future remedies included the respondents’ preparation of a written policy on accommodation of pregnant employees including maternity/parental leave practices.

Maciel vs. Fashion Coiffures is a reminder of the employer’s continued obligation under the “Code”.

For further reading please refer to Lugonia v. Arista Homes: Pregnancy, short-term contracts and the “Code”


[i] Maciel vs. Fashion Coiffures, 2009 HRTO 1804 para. 12

[ii] Ibid., para. 14

[iii] Ibid., para. 15

[iv] Ibid., para. 18

[v] Ibid., para. 22

[vi] Ibid., para. 46

Follow me

Kevin Sambrano

Kevin Sambrano, B.A.A. is a paralegal who is passionate about human rights. Kevin worked for a number of years as a tenant advocate organizing over 100 tenant associations and taking part in over 80 positive outcome negotiations. He completed his internship at a law firm, focusing in human rights and employment law. Recently, Kevin opened the doors of Sambrano Legal Services offering representation in human rights and employment law in Toronto and the GTA.Read more
Follow me
Kindle

, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

2 thoughts on “Maciel vs. Fashion Coiffures: pregnancy and employer’s continued obligation under the “Code”

Leave a Reply

Your email address will not be published. Required fields are marked *

Time limit is exhausted. Please reload CAPTCHA.