Navigating Pregnancy Leave Terminations: A Guide for Employers

Terminating an employee while they are on pregnancy leave is a highly sensitive and potentially risky matter. Employers must proceed with caution to avoid legal repercussions and maintain a positive workplace culture. This Ontario employment law blog article will explore the legal considerations, potential consequences, and best practices for employers when dealing with pregnancy leave terminations.

Legal Considerations

Human Rights Code: Ontario’s Human Rights Code prohibits discrimination based on pregnancy. Terminating an employee due to pregnancy or pregnancy-related absences would be a clear violation of the Code.
Employment Standards Act: The Ontario Employment Standards Act, 2000 provides specific protections for pregnant employees, including the right to maternity leave and reinstatement to their same (or a substantially similar) position upon return. Terminating an employee during their maternity leave or upon their return could be a violation of the Employment Standards Act, 2000.
Constructive Dismissal: Even if an employer does not explicitly terminate an employee’s employment while they are on pregnancy leave, significant negative changes to their working conditions or benefits could amount to constructive dismissal.

Potential Consequences of Improper Termination

Wrongful Dismissal Claims: An employee who is wrongfully dismissed due to pregnancy may be able to sue the employer for a wrongful dismissal claim seeking damages, including lost wages, benefits, and potential punitive damages.
Human Rights Complaints: A terminated employee can file a human rights complaint alleging discrimination based on pregnancy. This can result in significant financial penalties for the employer and reputational damage.
Negative Publicity: A wrongful termination case can lead to negative publicity, damaging the employer’s reputation and making it difficult to attract and retain top talent.

Best Practices for Employers

Avoid Discrimination: Treat pregnant employees fairly and consistently with other employees, and avoid making assumptions or treating them differently due to their pregnancy (or even creating the appearance of differential treatment).
Accommodate Pregnancy-Related Absences: Make reasonable efforts to accommodate an employee’s need for time off due to pregnancy-related reasons. This may involve modifying their duties, allowing flexible work arrangements, providing temporary disability benefits, and ensure the employee has an opportunity to return to their job upon their return to work.
Communicate Regularly: Maintain open and honest communication with the employee throughout their pregnancy and maternity leave, and keep them informed of any changes to their position or the company’s operations.
Reintegrate Upon Return: Develop a plan to reintegrate the employee into the workplace upon their return from maternity leave or parental leave, which could involve providing training, orientation and a gradual return-to work-plan.
Seek Legal Advice: Consult with a Toronto employment lawyer to ensure compliance with all applicable laws and regulations. An experienced employment lawyer can help you navigate the complexities of pregnancy and parental leave terminations and avoid legal pitfalls that could result in wrongful dismissal claims, constructive dismissal claims and human rights claims
Keep Proper Documentation: Maintain clear and accurate documentation of all communications and interactions with the employee during their pregnancy and maternity leave, including any termination letters.
Workplace Culture: Foster a supportive and inclusive workplace culture that values diversity, inclusion and equality.
Training: Provide training to managers and supervisors on pregnancy-related rights and obligations.

By following these best practices and seeking legal advice when necessary, employers can minimize the risk of legal consequences and maintain a positive workplace environment for pregnant employees.

Case Example

In a recent case before the Ontario Human rights Tribunal called Iskander v. 2363327 Ontario Incorporated, a pregnant employee who was fired from her job after 1 week of employment based on a comment she made on Facebook. In the facts of this case, the HRTO found she was discriminated against on the grounds of sex, including pregnancy.

Facts

The terminated employee had applied to work as a cook at Burgers on Beechwood restaurant. During her job interview, she disclosed that she was pregnant and needed to work enough hours to qualify for Employment Insurance (EI) maternity leave benefits. She was successful in obtaining the job reporting directly to the owner, and was advised that she would be able to work full-time after a brief ramp-up period to help her qualify for the required EI threshold.

After her first week of employment, the employee followed up with the owner to confirm that her work hours would be increasing moving forward, and was told: “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.” The employee testified that she was shocked to learn that she had been fired, and that she never discussed her post-maternity plans or ever suggested to the owner that she would not be returning to work with the company following her maternity leave.

The Facebook post in question was an unrelated advertisement on Facebook, in which a family member commented asking if the employee was in Canada. In turn, she responded, “just for a bit.” The employee testified that she had not told the family member that she was pregnant or that she had returned to Ottawa after previously living abroad. Rather, she chose to reply that she was back in Canada “just for a bit” to forestall any further questions.

After the employee had her baby around 3 months later, she made an application to the HRTO claiming that she was discriminated by the employer and its owner based on sex, including sexual harassment and pregnancy in her employment.

The former employer and owner only participated in the initial stages of the complaint, but did not attend the hearing or provide evidence other than their written response. So, the HRTO accepted the employee’s evidence and allegations as fact.

In the end, the HRTO found that the Facebook comment, which the employer never asked her to clarify, did not give the employer any basis to assume that she was unwilling or unable to continue working up to her due date, that she was going to resign either before or after that time, or that she was uninterested in returning following the end of her leave.

As a result, the HRTO determined that the employer connected the Facebook post with the idea that she would be leaving Canada relating to her pregnancy, and then terminated her because of it. Her pregnancy was clearly a factor in her termination, especially because of the owner’s message. The was awarded damages for injury to dignity, feelings and self-respect, lost wages, and lost EI benefits amounting to $37,849, which both the restaurant and owner had to pay.

Take-Away Lessons

When dealing with employees, employers should be cautious when making assumptions about employees, especially relating to matters involving personal characteristics protected by the Ontario Human Rights. When uncertain, it is important for employers to discuss concerns or get clarifications from employees to ensure an environment where the employee feels safe to speak up before making any major decisions, and only rely on direct statements from the employee, or those verified by the employee to be accurate. Accordingly, as with any other employment litigation disputes, discrimination claims should be taken seriously by employers to help minimize risks of litigation.

Book a Consultation with an Employment Lawyer in Toronto

At Bune Law, we understand and are familiar the complexities of workplace law and are committed to helping both employers and employees navigate these challenges. Whether you are an employer or employee dealing with employment contracts, workplace disputes like a wrongful dismissal or constructive dismissal, or simply need guidance on your rights and obligations for a severance package review and negotiation, our experienced employment lawyer is here to assist you.

Book a confidential consultation with our Toronto employment law firm to protect your legal rights to understand your options and protect your rights.

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If you need a Toronto employment lawyer who is committed to delivering strong results and proactive solutions, please contact Bune Law online or by phone today at 647-822-5492.