Archive for maternity
Discrimination and Pregnancy = Bad News.
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This Human Rights Decision is a perfect example of why you should speak to a lawyer before making any decisions with respect to pregnant employees. In the case of Jessica Maciel v. Fashion Coiffeurs, the applicant Maciel was hired to work as a receptionist in two related salons operated by the respondents in the Erin Mills Town Centre. At the time she was hired she was just over four months pregnant. She alleges that she advised the manager of the salons that she was pregnant on the first day of her job and was fired shortly thereafter.
The human rights tribunal was of the view that the applicant made out a prima facie case of discrimination on the basis of sex (pregnancy), contrary to sections 5(1), 10(2) and 9 of the Code and that the respondents failed to prove a non-discriminatory explanation for the precipitous termination of the applicant’s employment. There are certain remedies set out by S. 42.5 of the Human Rights Code, one being monetary compensation. Compensation was a big issue in this hearing given that the employer prohibited the employee from satisfying “fresh hours” as required for HRDC in order to qualify for maternity leave benefits.
The applicant testified that after she was terminated from the respondents’ salons, she attempted to look for work, but did not have any success. She attributed her lack of success, in part, to the fact that her pregnancy was increasingly obvious to any potential employer. She had two interviews, but at each of these interviews, testified that the interviewers expressed their opinion that the physical nature of the work would be dangerous for a pregnant woman. At seven months pregnant, she gave up her job search.
The tribunal noted that “With no insurable hours, she was ineligible for maternity and parental benefits following the birth of her son.” As pointed out in paragraph 74 of Dodds v. 2008573 Ontario Inc., 2007 HRTO 17 (CanLII): “It is reasonably foreseeable that a pregnant woman will be unable to find alternate employment during her pregnancy to make up for any shortfall in eligibility requirements to qualify for full maternity leave and parental benefits.” The tribunal found that with respect to the maternity and parental leave, the applicant would have met the threshold for eligibility had she continued to work with the respondents until her due date. The applicant testified that she was planning to and was physically able to work until her due date. The tribunal found that these benefits would have been payable at 55% of the applicant’s averaged insured earnings (i.e., $242 / week) for 50 weeks. The gross total loss of benefits is $12,100.00. Employers – please don’t interfere with the employment of a pregnant woman without the advice and opinion of an employment lawyer. A small business like the respondents obviously did not foresee the issue of discrimination having a probably impact on Ms. Maciel not qualifying for maternity leave benefits. If you are a small business like the repondents you need to protect yourself by learning your rights.
You can contact Matt Lalande here for more information and you can read a copy of the decision below.
An employee is returning from Maternity Leave: reinstatement is a must.
Posted by: | CommentsWhat happens if a woman takes maternity leave, returns to work, and is then terminated soon after? Well, if you are reading this and you are an employer – you are probably trying to educate yourself on the issue. Let me help you – don’t mess around with employees coming back from mat leave. Talk to a lawyer. You are opening the evil door of exposure. An employee cannot be penalized because she plans to take or has taken a pregnancy and parental leave. This is a right that employees have in this province. If you tell and employee differently you are violating her rights.
Why do I say this? There are a number of ways to look at the situation. Firstly, the Employment Standards Act of Ontario is very clear in stating that an employee who takes a pregnancy or parental leave is entitled to be reinstated into their same job or into a comparable position. If you do not reinstate your employee upon her return from maternity leave, or you do not offer her a comparable position, or if you terminate her position – then she can file a claim under S.53 of the employment standards act. If you terminate her job functions and eliminate the position, you will be called on a “sham reinstatement”. Depending on the situation, she can also possibly file a civil claim for wrongful dismissal damages and drag your into a lawsuit. This will become a bigger problem the termination prevented her from collecting EI. She can also possibly file a human rights claim. It is important to remember that an employee may not commence a civil proceeding for wrongful dismissal if that employee is filing a wage loss claim with the ministry. You are up the creek every which way. And if you manage to paddle out, it will cost you a half-ton of legal fees defending it.
Section 53
A quick read of s. 53 will tell you that the Act imposes on an employer an obligation to reinstate an employee following pregnancy and/or parental leave. The presumptive remedy for such a breach is for the Board to order reinstatement. Where it is established in evidence before the Board that reinstatement is not an appropriate remedy, the Board will consider an alternative remedy – normally called a “make whole” award of damages.
Reinstatement is not often a good choice. It is rare that the Ministry of Labour will make that decision. If your employee has been absent from the workplace on maternity leave only to return to be terminated, both of you will feel quite uncomfortable if that employee is reinstated. The workplace will be poisoned. Instead the Board will determine what is necessary to put the employee in the position she would’ve been in had the act not in breached. It is sort of a “make whole “order.
The components noted as “make whole” damages that can be awarded payable to an employee are categorized as follows:
a) Direct wage loss;
b) Damages for emotional pain and suffering;
c) Job Search expenses; and
d) Damages for the loss of expectation of continued employment. The jurisprudential developments are in the direction of awarding one month’s pay for every year of service.
These were the damages explored and awarded to a terminated employee in the publicly noted case of Judith Buys Dentistry Professional Corp. v. Parker. You can find a copy of the case here.
Tracy Parker was employed by Dr. Buys. Initially, she worked exclusively in the home of Dr. Buys, primarily providing childcare for their two pre-school children, but also performing certain other domestic chores. Ms. Parker then commenced a maternity leave at some point. No one replaced Ms. Parker in the home or in the office during her period of leave. By the time Ms. Parker returned from her maternity leave, both of Buys’ kids were enrolled in private school. There were no more childcare responsibilities for Ms. Parker to perform. She then went to work at Buys’ dental practice. She was covering another employee’s maternity leave. Parker found out that she was pregnant again. Parker and Buys had a fallout when Buys was advised of this. There was also the issue of another employee was making more money than Parker in the same position. Parker wasn’t happy with Buys’ response and took her maternity leave early. Nearly a year passed and when Parker communicated her return to Dr. Buys trouble brewed. She was advised by Dr. Buys that, pursuant to their signed agreement, her employment had terminated in May 2007 when Amanda Crowley (the employee she was replacing) returned from her maternity leave. There were contractual issues debated. The Ministry did not agree with Buys.
Vice-Chair McKellar found that Parker should be entitled to find that the appropriate measure of damages in this case is $22,687.41. This was made up of:
1) $418.05 for Ms. Parker’s job search expenses
2) $500.00 for pain and suffering
3) $2,607.68 for past income losses
4) $104.31 for vacation pay in respect to the income losses
5) $16,994.88 in damages in respect of her loss of expectation of continued employment.
The vice chair agreed with the case law that holds that where an award is made both for direct wage loss (or loss of the expectation of continued employment) and termination pay, the latter amount has been characterized as duplicative she did not find that Ms. Parker was entitled to any additional or separate amounts in respect of termination pay.
Parker still may would have had a claim under at the Human Rights Tribunal. Because she was not entitled to termination pay she may would still have had a wrongful dismissal lawsuit. It is important to note that Parker had been employed for Buys for over ten years. A wrongful dismissal claim may attract damages significantly higher than $22,687.41.
The long and the short is don’t mess with pre or post natal employment. You must prove the termination was not attached to the maternity issues – and in most cases this is very tough to prove. Call a lawyer. Call a lawyer. Call a lawyer.
