This article deals with the case of a human rights complaint filed by a pregnant temporary worker following her termination.
Many employers in Canada use temporary workers supplied by employment agencies so that they don’t have to have full time employees and the obligations associated with full time staff such as severance, benefit and other monetary entitlements. These workers can be brought in when needed to work on specific tasks and they can be terminated on short notice and low cost. Employer derive a lot of flexibility from their use.
This issue of the rights of temporary workers was recently discussed in a real life situation that was reported on September 18, 2017 by Colleen Underwood in an article for the CBC.ca website entitled “Temporary employee says she was let go for being pregnant, files human rights complaint” http://www.cbc.ca/news/canada/calgary/pregnancy-employment-ab-human-rights-complaint-1.4292660.
Ms. Underwood wrote about a recent case arising from Alberta where a temporary worker’s services were allegedly terminated shortly after she advised her manager that she was in the very early stages of pregnancy. It was reported that the employee’s manager allegedly dismissed the temporary worker on the basis of her “condition” and that she could not perform the heavy lifting required of the job which the employee said was not true and that she planned to continue working well into her pregnancy. The company also said that the work the employee had been hired for was complete. The employee alleged that the reason for the termination of her services was her pregnancy and she was replaced by another worker shortly after her dismissal.
This case highlights a number of key points:
- All employees regardless of employment status have the protection of human rights legislation. Human rights legislation does not draw distinctions based on full time, part-time, temporary or fixed term employment.
- This means that if an employer terminates or replaces an employee who is supplied by temporary help agency or other third party for reasons that could constitute discrimination under a prohibited ground under human rights legislation, such as pregnancy, they may be breaching the applicable human rights legislation. Just because the employee is temporary does not mean they don’t have the protection of human rights legislation. Further, it is widely accepted that if 1% of the reason for the termination of an employee is motivated by discriminatory reasons, then the entire termination will be discriminatory.
- This case also highlights the mischief that could occur between temporary help agencies and employers in the selection of and supply of individuals with certain “attributes” or desired “qualities”. If employees are screened out or not supplied on the basis of prohibited grounds such as “age” (i.e. an individual is considered too old for the job), there could be discrimination.
- Employers who use temporary help employees may be losing flexibility and are increasingly required to comply with minimum standards legislation and afford these employees the same rights that are extended to full/part-time employees. This case highlights this may include human rights protections and potential accommodations for medical conditions.
In Ontario, the provincial government has been contemplating significant reforms to the Employment Standards Act, 2000 and the Labour Relations Act to address what it calls “precarious employment”. While temporary employees may not have had significant rights in the past, there is a growing trend throughout Ontario and Canada to extend protections to these employees.
Latest posts by Simon Heath, BA, MIR, LLB, Heath Law (see all)
- What are the “exceptions” to the equal pay provisions of the Employment Standards Act - May 30, 2018
- 5 employment law predictions for 2018 - December 20, 2017
- Ontario Court of Appeal confirms offer of employment is consideration after an asset sale - November 22, 2017