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Protection for pregnant women strengthened by Ontario and British Columbia courts

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In a decision released on July 19, 2010, the Human Rights Tribunal of Ontario held that an employee who was fired because she was pregnant had been discriminated against on a prohibited ground.

The complainant had been hired to work in the respondent’s licence issuing office as a customer service representative. She was fired three weeks after being hired. The complainant argued that she was fired after she told some of her co-workers that she was pregnant.

The complainant became aware of her pregnancy approximately one week after she started working. At the tribunal, she claimed that the attitude of her supervisor, the individual respondent, changed significantly after he became aware of her pregnancy. She further alleged that her supervisor told her that he was firing her because she was “prego”.

Not surprisingly, the supervisor denied the allegations and testified before the tribunal that he fired the employee due to poor performance. However, there were no written warnings of poor performance in her file, nor were there any confirmations of any verbal warnings.

The tribunal referred to the provisions of the Ontario Human Rights Code, and in particular, s. 10(2). That section provides that “the right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is, or may become, pregnant.” The tribunal held that in order to prove discrimination contrary to this section, the complainant needed only to show that her pregnancy was a factor in the decision to terminate her employment. On the facts before it, the tribunal concluded that is was more probable than not that the complainant’s pregnancy contributed to the decision to fire her. The tribunal therefore held that the employer had infringed her rights under the Code.

In determining which of the remedies available under the Code was appropriate, the tribunal looked to the nature of the employee’s losses and the impact that the dismissal had on her life. Based on these factors, the tribunal ordered compensation for her loss of wages for the period the tribunal felt that she would have worked. The tribunal also awarded $10,000 to compensate the complainant for injury to “dignity, feelings, and self respect.”

In a decision rendered by the British Columbia Court of Appeal in July, the Court considered the implications of dismissing an employee while the employee is on maternity leave. In this case, the employee worked for a publicly funded tourism office. The employer decided to wind up its operations while the employee was on maternity leave. The employer recognized that it had obligations to the employee, but, before any decision could be made as to the compensation to be offered, the employee sued in Small Claims Court. The employer took the position that the commencement of the litigation constituted a breach of the employment relationship which justified the employee’s termination. The employee then commenced a separate action in the Supreme Court of British Columbia. That action was dismissed by way of summary trial. The employee appealed that dismissal.

In allowing the appeal, the majority of the British Columbia Court of Appeal held that the employee’s employment had been effectively terminated when the employer advised her of the pending closure of the office. Therefore, the subsequent commencement of the Small Claims Court action could not be held to be a repudiation of the employment relationship by the employee. The Court also rejected the employer’s argument that its advice of the closure of the office did not amount to constructive dismissal because the applicant was on maternity leave. The Court found that such a conclusion would “stand the law on its head” and would be unfair to the employee. The Court therefore found that the employee had been wrongfully dismissed and sent the matter back to the trial Court for re-hearing.

These two decisions highlight the potential pitfalls for employers in dealing with pregnant employees or those on maternity leave. Detailed advice on each circumstance should be obtained before taking any steps with respect to such employees.

Earl Altman
Garfinkle, Biderman

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Earl Altman

Legal consultant at EA Consulting
Earl Altman was a partner at Garfinkle, Biderman and now heads his own consulting firm. Earl has practiced commercial and employment litigation. Earl’s practice focuses on employment disputes, including acting for employees and employers in wrongful dismissal claims, and in breach of contract and breach of fiduciary duty claims. Read more
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