Many people who get fired while pregnant, on maternity or disability leave assume that the Human Rights Tribunal of Ontario (“HRTO”) is the logical place to turn to grieve their case. However, several recent decisions from both the HRTO itself and the Ontario courts demonstrate that that assumption may be misplaced.
While this blog has previously looked at other cases on this topic (see e.g. Human Rights Tribunal Not The Place To Ask For Severance) this post will consider a decision of the HRTO concerning an employee fired while pregnant.
Facts
The case of Sloan v. Just Energy Corporation, 2012 HRTO 127 (CanLII) concerned an application made to the Human Rights Tribunal of Ontario by an employee (identified in the tribunal’s reasons for decision as “the applicant”) who alleged that her employment was terminated because she was pregnant. According to the evidence summary contained in the tribunal’s reasons for decision:
The applicant was hired as a recruiter for Just Energy in its Ottawa, Ontario office. Just Energy sells energy contracts to residential, commercial and industrial clients. Just Energy’s headquarters is in Mississauga, Ontario and it has offices all across North America. It generates sales through independent contractors who sell door-to-door. The recruiter’s role is to generate a “continuous flow” of candidates for the independent contractor positions through a variety of recruiting strategies, such as online advertising and contacts. The Just Energy call centre also provides the recruiter with candidates to be interviewed. The recruiter then screens candidates, interviews candidates and selects them.
The applicant commenced employment on March 28, 2011. Her letter of offer stated that she was to be on a three-month probationary period. It also stated that during this probationary period her employment could be terminated at any time without prior notice and “without any further obligations” to her.
The applicant testified that she did not know she was pregnant when she was first interviewed for the position. She testified that her pregnancy was confirmed “at least one week” after she started at Just Energy. She advised the respondent that she was pregnant on April 14, 2011. At the time, she was in the first trimester of her pregnancy. Her employment was terminated on April 18, 2011.
The applicant argued that the complaints about her performance were manufactured after she told the respondent that she was pregnant. She argued that the employer’s evidence was weak and that the logical inference to be made was that her pregnancy was at least a factor in the decision to terminate her employment.
The employer argued that the HRTO’s sole jurisdiction is to determine if there was a discriminatory reason for the termination of the applicant’s employment. It further argued that is not within the HRTO’s jurisdiction to determine if there was just cause or whether the probationary period was fair.
Decision
In what may be a bit of a surprise for some readers, the HRTO agreed with the employer.
Writing on behalf of the tribunal, Vice-Chair Ian R. Mackenzie held that:
[55] The employment of pregnant employees can be terminated, as long as the pregnancy is not a factor in the employer’s decision.
[56] The respondent clearly had concerns about the applicant’s performance and her “fit” within the organization. I understand that the applicant does not believe that there were significant performance problems and that she was improving. However, the Tribunal does not have a general jurisdiction over fairness in employment matters. The fact that the employer may have rushed to judgment in assessing the applicant’s performance, in the absence of a discriminatory action, cannot be addressed by the Tribunal.In the result, the application was dismissed. The dismissed employee lost and was awarded nothing.
Commentary
As mentioned at the start of this post, this blog has previously looked at the issue of selecting the appropriate venue for pleading one’s case. While there are certainly advantages to pleading one’s case in front of the Human Rights Tribunal of Ontario, as the Sloan case demonstrates, the HRTO is not a ‘one-stop shop’ for all problems.
As someone who represents both employees, and more frequently employers, with respect to such cases it is far too common that I see applicants, often self-represented, who mistakenly believe that the HRTO has the power to adjudicate all aspects of employment law. As the tribunal made clear in Sloan, it quite simply does not.
Takeaways for Employees with Labour Pains
If you are a worker in Ontario and have been fired by your employer it always makes sense to speak with an experienced employment lawyer before doing anything else.
While it may seem like calling the Labour Board or the Human Rights Tribunal may be the logical first step, as cases such as Sloan and in the case of the Labour Board, Limebeer v. Canadian Tire Corp. Ltd., 2013 ONSC 2735 (CanLII), summarized by this blog in the post Employees Cannot Make ESA Complaints and Sue: ON SC demonstrate, choosing to start your case in the wrong place can be very costly.
Speak with an employment lawyer before making any final decisions as to (a) whether to sue for wrongful dismissal and (b) if so, where. The cost of that conversation will likely be much less than the cost of getting it wrong. For example, had the applicant in the Sloan case sued for wrongful dismissal and alleged in that case that she was discriminated against on the basis of being pregnant, she likely would have received something.
- With respect to the issue that the applicant in Sloan was fired during her “probationary period”, consider the post Probationary Periods and Notice.
- With respect to the issue of suing for wrongful dismissal and making allegation of a violation of Ontario’s Human Rights Code see the post Ontario Superior Court Awards Human Rights Damages
If you would like assistance with your wrongful dismissal case, the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.
Takeaways for Employers with Labour Pains
The takeaway for employers is that just because an employee is pregnant that does not mean that you cannot fire her; the Human Rights Tribunal of Ontario was very clear in its statement on that point.
However, before taking any such course of action employers would be very well served by speaking with an experienced employment lawyer. Just because the law says you can do it, does not mean the employee is going to accept the decision.
If you are an employer in Ontario and are thinking about terminating the employment of any of your employees, but especially if that employee is pregnant, speak with an experienced employment lawyer first. The professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.
Contact Us
To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.
--As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.
I wonder if there would have been a different outcome if the firing would have happened post the three month probation period. This really seems to be an argument for the three month probation period. But good to know in any case.
ReplyDeleteMy answer is that the outcome, in front of the Human Rights Tribunal, would likely *not* have been any different.
DeleteThe probation period only applies with respect to one's entitlements to notice of termination under the Employment Standards Act. Have a look at the post Human Rights Tribunal Not The Place To Ask For Severance (http://bit.ly/1leuBBd) for a discussion of the ability to use the HRTO to claim entitlements arising under the ESA - spoiler: wrong place.
So, whether the employee was on "probation" or not, as the Vice-Chair noted, unless there was a violation of the Code, and in this case there was found not to be, the Tribunal has no jurisdiction to act.
I'm a bit confused by your use of the Sloan example. The employee was in the probationary period. A court likely would not have found that she was wrongfully dismissed unless the dismissal was discriminatory. (The contractual term is that there is no notice during the probationary period. The contractual term doesn't violate the ESA because no notice is required during the first 3 months of employment. A court is not likely to find the no notice probationary term so unfair that it will set the term aside.) If she had sued, she would have still likely ended-up with nothing (unless the court made entirely different findings of fact), and should likely would have been stuck paying costs. The basic idea you are talking about is, of course, entirely sound. If this fact scenario had played-out after the three month probationary term, a court could have found there was no cause for dismissal even in the absence of discrimination. However, the case used to illustrate the principle might lead to some confusion. The applicant in the Sloan case went to the only venue in which there was any potential to get a remedy.
ReplyDeleteI agree that the probationary provision in her agreement may have been an issue on the subject of wrongful termination - although little is said about that actual term in the HRTO's decision. I would again refer you to my post about probation periods and notice.
DeleteHowever, I disagree that the HRTO was the only venue in which there was any potential for remedy. The Ontario Human Rights Code specifically permits a plaintiff in a civil action (such as a wrongful dismissal case) to attach a claim for a violation of the Human Rights Code. In that case, while the claim for wrongful dismissal may have failed, (but consider the decision in Davidson v. Tahtsa Timber Ltd., 2010 BCCA 528, which provided for "nominal damages" for the dismissal even where none were warranted for wrongful dismissal damages), the court could still have awarded Human Rights damages, I would argue.
Of course, she properly hedged her bets one might say, in that given her loss she still did not have to pay costs because she was before the HRTO.
It is exactly for that reason that I suggest speaking with a lawyer before deciding where to go.