The Code protects employees from discrimination based on various protected grounds. One of the more difficult of these may be pregnancy, as often the question becomes not whether or not the applicant was pregnant, but rather when the employer became aware of the pregnancy, and whether or not the pregnancy was a factor in the employee’s termination.
The applicant, Stacie Sloan, disclosed to her employer that she was pregnant during her three-month probation period. A mere four days later Ms. Sloan was terminated. Was the applicant terminated due to her pregnancy, as was claimed by Ms. Sloan? Or due to poor job performance, as was argued by the respondent?
The applicant testified that at the time of the hiring on March 28, 2011, she was unaware that she was pregnant. Both parties agreed that her first week on the job was problematic and that she required additional support.
Ms. Sloan argued that the issue arose because a number of job-related materials had not been provided to her, and had they been, she would have been able to better manage her tasks. The employer argued that all materials had been provided to Ms. Sloan, including online training.
The employer further testified that management had agreed that Ms. Sloan’s job performance was lacking and that arrangements were being made for her termination. A member of the management team testified that based on her observations, she did not see the applicant improving sufficiently to meet the requirements of the position, no matter how much time she was given to improve. According to the employer, the discussion concerning termination was held as early as April 11 and April 12, 2011. It was not until the meeting of April 14, 2011 that the applicant disclosed that she was approximately three months pregnant. [i]
While the employer admitted it was aware of Ms. Sloan’s pregnancy at the time of the termination, which took place on April 18, 2011, the question before the Tribunal became whether or not the pregnancy had anything to do with the termination. The employer denied this allegation.
Under the Code, once a prima facie case of discrimination has been made out by the applicant, the burden then shifts to the respondent to present a plausible non-code related explanation for the employer’s action. If it is found that pregnancy was a factor in the decision to terminate, the employer may be culpable.
In the case at hand, the employer presented no less than three witnesses, all of whom were involved with the decision to terminate the employee. Further, the applicant’s timeline of events differed from those of the employer’s, while the employer’s timeline was consistent and corroborated by witnesses.
The Tribunal stated:
The Code provides a right to equal treatment in employment without discrimination because of sex: subsection 5(1). The Code also states that this right to equal treatment includes the right to equal treatment without discrimination because a woman is pregnant: subsection 10(2) [ii].
The Tribunal found the respondent’s witnesses were credible, suggesting there were job concerns at the outset of the employment. The Tribunal found that there was insufficient evidence to conclude there had been a breach of the Code, stating:
I understand that the applicant does not believe that there were significant performance problems and that she was improving. However, the Tribunal does not have a general jurisdiction over fairness in employment matters. [iii]
The application was dismissed.
The takeaway is that the applicant must be able to substantiate any code-related allegations. Further, the Tribunal does not deal with issues of fairness. In this particular matter, the proper remedy may have been found in an alternate jurisdiction.
[i] Sloan v. Just Energy Corporation, 2012 HRTO 127 paragraph 12
[ii] Ibid., 2012 HRTO 127 paragraph 46
[iii] Ibid., paragraph 56
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