Pregnant employees have special rights under the Employment Standards Act and the Human Rights Code. And most judges are sympathetic to the problems that women face when they return to work following a pregnancy leave.

A recent case is a good example of what not to do when an employee returns to work following a pregnancy leave.

The Facts

Lee Partridge worked in a dental practice as an office manager working 9 to 5 four days a week. Originally she had been hired as a dental hygienist. Shortly before returning to work following a pregnancy leave the dentist told her that he would be scheduling her as a dental hygienist with fewer and different hours of work. After reminding the dentist of her legal obligations to reinstate her to the office manager position the dentist informed Ms. Partridge that she planned to schedule her to work after 5 pm as a hygienist which he knew would create child care problems for the returning employee. About a week after returning to work the dentist terminated Ms. Partridge’s employment after she refused to meet with the dentist unless a witness was present.

The Legal issues

1. Wrongful Dismissal

The dentist claimed she had just cause to terminate Ms. Partridge’s employment. The trial judge disagreed and concluded the employee was entitled to receive reasonable notice of termination. At the time of her termination, Ms. Partridge was 39 years old and had been employed for almost 7 years.  The trial judge awarded Ms. Partridge 12 months pay in lieu of reasonable notice. This is a longer notice period than one would expect in these circumstances. It is also surprising that a dental hygienist was unable to secure alternative employment for more than one year. In most labour markets, dental hygienists are in high demand however the judge concluded the employee’s job search was adequate.

2. Violation of the Employment Standards Act

The judge concluded there was a violation of Section 53 of the Employment Standards Act however the judge did not award any damages for this misconduct. Instead of filing a court action, Ms. Partridge could have filed a complaint under the ESA without the assistance of a lawyer and sought reinstatement, lost wages and damages for mental anguish but she elected to commence an action in the court instead.

3. Violation of the Human Rights Code

The judge concluded the dentist discriminated on the basis of family status because she scheduled Ms. Partridge to work until 6 pm on some days and awarded Ms. Partridge $ 20 000 in general damages for a violation of the Human Rights Code. This finding is a little surprising because Ms. Partridge’s kids did not have special needs, her husband was self-employed and he, extended family and neighbours could care for the children between 5 pm and 6 pm. In addition she could use paid childcare available during this time. The facts of this case were much different than the recent Federal Court of Appeal case the judge relied upon.

Lessons to Be Learned:

1. At the end of a pregnancy leave, an employee has the right to return to the position most recently held by the employee if it still exists or to a comparable position, if it does not. If the position still exists then an employer should generally obtain the employee’s agreement before assigning her to a different position.

2. Terminating an employee shortly after returning from a pregnancy is generally a very bad idea. The employee can commence no cost legal proceedings under the Employment Standards Act and the Ontario Human Rights Code. In addition, trial judges are generally sympathetic to new mothers and will often exercise their discretion to help these employees. When determining “reasonable” notice a trial judge has broad discretion. In this case, I suspect most employment lawyers would have advised Ms. Partridge that she was entitled to up to 7 months notice of termination particularly given her age and the availability of comparable employment given her education and experience. This trial judge awarded 12 months.

3. This is the second time – to my knowledge – that a judge has awarded general damages for a violation of the Human Rights Code in a wrongful dismissal case. The judge concluded the employer discriminated on the basis of family status. In both cases the amount was $ 20 000. In neither case did the judge give detailed reasons explaining how the judge arrived at this amount. In both cases, the court did not refer to or apply the case law that the Ontario Human Rights Tribunal has developed over the years when deciding on an appropriate damage award. I do not think most adjudicators would have found that there was a violation of the Code on the basis of family status.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers and employees on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]