May 2

Termination While Pregnant Notice Period

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Termination While Pregnant and the Notice Period

In the third installment of our four-part series on human rights issues related to pregnancy and maternity leave, we turn to the decision of Harris v. Yorkville Sound Ltd., 2005 CanLII 46394 (ON SC).

In Harris, the Plaintiff, who had worked for eight years in multiple departments of the Defendant’s operation, was terminated with cause while she was three months pregnant.

Points of Interest
The decision was interesting for two reasons:
1) The fact that the Defendant provided the Plaintiff with 15 weeks’ pay despite being terminated with cause; and,
2) The fact that the court chose to elongate the Plaintiff’s notice period by 4 months due to her pregnancy and the unfair manner in which she was terminated.

The Facts
The Plaintiff initially worked in the Defendant’s finishing department. She was later promoted to the soldering department and eventually to the wiring department over her 8 years of employment. The Plaintiff had gone on maternity leave previously during her employ with the Defendant; she was a mother of two children.

While she was pregnant with her third child, complaints began to surface regarding the Plaintiff. Namely, she was accused of being “too vocal”, “disruptive” and incapable of getting along with her co-workers. The Defendant asserted that these issues arose three years into her employment, that there was some improvement after a written warning, and that no additional warnings were provided for the remainder of her employment.

Following her termination, the Plaintiff was given a cheque for $8,055- the equivalent of 15 weeks’ pay. Her employer asserted that there was significant cause to terminate her, on the basis of the complaints discussed above.

The Defendant’s actions in this regard were unusual given that the Employment Standards Act, 2000 does not require a termination or severance payment when the employee is dismissed with sufficient cause (“willful misconduct”, as per Section 9(6) of the Employment Standards Act, 2000 O. Reg 288.01)

Findings of the Court
The court found that there was insufficient cause to terminate the Plaintiff. While it did not find that she was discriminated against on the basis of sex (pregnancy), it awarded her 14 months’ notice, an increase of 4 months from the reasonable notice period, given her status of pregnancy. In relying on its methodology to extend the notice period, the court noted the decision in Tremblette v. Aardvark Pest Control Limited, [1987] O.J. No. 2380, wherein Justice Hoilett made the following commonsensical observation: “The plaintiff was pregnant at the time of her dismissal, a fact which fairly or not, did not enhance her immediate employability.”

This was demonstrated by the fact that the Plaintiff only found work as a part-time school bus driver, which can hardly be said to have been comparable re-employment, almost two (2) years following her termination.

The termination was also hard on the Plaintiff with respect to her financial situation. Aside from her relatively lengthy period of unemployment, she also had to pay for an expensive prosthesis for her newborn child, who was born with a rare eye tumour. As the Plaintiff no longer had benefits, it was an out of pocket expense.

Principles of the Decision
Harris confirms that the dismissal of a pregnant employee will inevitably function as an aggravating factor in terms of the notice period. Justice Dambrot specifically noted that Harris’ pregnancy and her employer’s conduct and unfair manner of termination were elongating factors in terms of the notice period, noting that the notice period could have been elongated for an additional 4 months alone based on the manner of Harris’ termination, had in not been closely tied to the other reason for elongation, Harris’ pregnancy. As such, the two elongating factors each added 2 months to Harris’ notice period, respectively.

Harris was decided in 2005, pre- Wilson v. Solis Mexican Foods, which is likely the reason why damages for discrimination were not awarded. Until Wilson was decided in 2008, the courts had not awarded damages for violations under the Ontario Human Rights Code, R.S.O. 1990, c.19.

Advice for Employers
When considering the termination of a pregnant employee, it is important that you take all possible precautions prior to termination and consult with a professional if you are unsure regarding the decision to terminate that employee. In addition to the extended notice entitlement supported by the Harris decision, termination of a pregnant employee can also be found to be a violation of the Ontario Human Rights Code, R.S.O. 1990, resulting in further liability. Contact Monkhouse Law today for a free consultation if you have an issue with a pregnant employee or are considering proceeding to termination.

Advice for Employees
If you have been terminated for being pregnant, you may have a legal remedy available to you. As the decision in Harris v. Yorkville Sound illustrates, you could be entitled to an elongated notice period, in addition to damages under the Ontario Human Rights Code, R.S.O. 1990, c.19 if it is found that you were discriminated against. If you have any questions, contact Monkhouse Law today for a free consultation.