Earlier this month, Vey Willetts LLP was successful at the Human Rights Tribunal of Ontario (“HRTO”) in securing an award of almost $40,000 against a corporate respondent (and its owner) for firing a pregnant employee after 8 days of employment.

The case in question

The applicant in this case was employed as a cook with an Ottawa-based restaurant. In this role, she reported directly to the company’s owner (and personal respondent in this case).

During the hiring process, the parties discussed that:

1. The applicant was pregnant and needed to work sufficient hours to ensure she could qualify for EI maternity and parental leave benefits; and
2. While the applicant’s weekly hours would vary, the company would provide her with full-time (or nearly full-time) work following a brief ramp-up period.

The applicant began work with the corporate respondent on April 15, 2018, and completed her first week of work without issue. On April 23, the applicant contacted the company owner to ask about her future work schedule as she needed to work sufficient hours to qualify for EI maternity and parental leave benefits.

In response, the owner texted the applicant stating: “Yes, unfortunately we will not need you anymore We hired a new Cook as a casual and we understand that as per your Facebook you will be leaving after the baby is born so we had to take that decision.” [sic]

The applicant testified that she was shocked to learn she had been fired and had never discussed her post-maternity plans with anyone at the company or suggested she would not be returning to work with the Company following her maternity leave.

In its Response to the Application, the respondents asserted for the first time that the decision to terminate the applicant’s employment came after reading an April 20, 2018, Facebook exchange between the applicant and a relative which appeared to suggest she may only be back in Canada temporarily. The respondents, however, took no steps to discuss this exchange, or its meaning, with the applicant prior to terminating her employment.

At the hearing of this matter, the applicant testified that:

1. the relative in question was unaware she was pregnant or that she had returned to Ottawa after previously living abroad. She thus chose to reply that she was back in Canda “just for a bit” to forestall any further questions; and
2. as of April 23, 2018, she was fit, able and planned to keep working for as long as she could prior to giving birth.

After being dismissed, the applicant made ongoing efforts to find new work. Her efforts in this regard yielded only one day of paid work (in early July 2018 at another restaurant). The applicant contacted Service Canada on July 22, 2018 and was informed that she had insufficient insurable earnings to qualify for EI maternity and parental leave benefits. The applicant gave birth on July 31, 2018, and was forced to rely on personal savings and family financial support to get by. She found this deeply embarrassing.

The HRTO found in favour of the applicant, noting that:

the applicant experienced discrimination in employment on the grounds of sex including, pregnancy, as a result of the personal respondent’s conduct in terminating her employment. Therefore, she is entitled to a remedy for the breach of her Code protected rights.   

In light of this, the HRTO ordered that the respondents were jointly and severally liable for:

1. $7,499 in lost wages (representing wages the applicant would have earned between from April 23 to giving birth on July 31);
2. $15,300 for lost EI maternity and parental leave benefits (as she was unable to work full-time, or close to full-time, for the period from April 23 to July 31, 2018 and would otherwise have accrued sufficient insurable hours); and
3. $15,000 for injury to dignity, feelings and self-respect.

Lessons for employers

This decision offers useful guidance to employers (and their directing agents):

1. Accommodate pregnant workers to the point of undue hardship. Do not make assumptions based on stereotype and, at all times, maintain a clear and open line of communication with staff.

• If you wish to terminate the employment of a pregnant employee, proceed carefully (being mindful of the duty to accommodate to the point of undue hardship). Ensure that you can demonstrate (with evidence) that the decision to dismiss was in no way related to, or as a result of, the individual’s pregnancy or any perceptions of the same. It must be a legitimate business decision, wholly disconnected from the person’s pregnancy (i.e., due to a downturn, an entire department of workers is being let go at the same time).

• Where a pregnant employee is found to have been dismissed for discriminatory reasons contrary to the Code, and the individual is unable as a result to qualify for EI maternity and parental leave benefits, the employer can expect to bear that liability. In this case, this came at an additional cost of over $15,000.

• Do not ignore a human rights application (or other legal proceeding). In this case, the corporate respondent advised that it intended to declare bankruptcy. As a result, the HRTO granted the applicant’s request to add the business owner as an individual respondent. The owner then failed to file a Response.

The HRTO later granted an order denying the respondents any further participation in the proceeding on “account of their abuse of the Tribunal’s process by failing to comply with their disclosure of documents obligations as directed by the Tribunal.” As a result, the respondents were deemed to have accepted all of the allegations set out in the application and waived their rights to notice or participation in the proceeding.