PREGNANCY

In the normal course, an employee is entitled to reasonable notice of his/her termination. How does the additional factor that an employee is pregnant at the time of termination affect the notice period? The case of Harris v. Yorkville Sound Ltd., (“Yorkville”) dealt with this issue. Ms. Harris, a 31 year old mother of three worked with Yorkville for eight years. Ms. Harris was terminated for cause related to inappropriate conduct and her inability to get along with coworkers. Ms. Harris had only received one written warning about her conduct in the five years prior to termination but the termination was approved by a committee made up of co-workers. Mr. Justice Dambrot of the Ontario Court set out the following issues he had to decide in this case:

1. Was the Plaintiff dismissed for cause?
The Court held that Ms. Harris’ alleged misconduct would not warrant summary termination of her employment since the Company failed to follow progressive discipline. The Court further held that the decision of the employee committee confirming the termination was meaningless given that there was “not even a modicum of fairness to the employee”.

The Court concluded that Ms. Harris was loud and boisterous, told dirty jokes at times, as did most of her coworkers. However the allegations made against Ms. Harris “could not conceivably justify dismissal”. The Court held that if Ms. Harris’ behaviour was truly perceived by the employer to be serious, further formal written warnings and ultimately a suspension might have gone a long way to bring home the importance of modifying her behaviour. The Court said that if that had happened, and there had been no change in Ms. Harris’ alleged behaviour, then termination could have been considered. In these circumstances, however the termination was “utterly unjustified”.

2. What is the appropriate notice period?
The Court held that the reasonable notice based on the normal factors (age, position, years of service), would have been 10 months. However, the Court took into account the fact that the Plaintiff was pregnant at the time of termination and increased the notice period to 12 months. The Court indicated that pregnancy should be taken into consideration when determining appropriate notice given that the pregnancy of an employee would have a direct affect upon the employee’s ability to find other work.

3. Is Ms. Harris entitled to bad faith damages?
The Judge held that the employer knew or ought to have known that Ms. Harris was pregnant at the time of termination and that terminating someone in such circumstances amounts to bad faith conduct. As a result, the Court increased the notice period by two months.

This case relies on the often cited principle in employment law that absent serious misconduct, progressive discipline must be used before an employee can be terminated for cause. The Court also awarded additional damages, not only for the fact that the employee was pregnant at the time of termination and would likely take more time to find alternate employment but for the mere fact that the employer knew that employee was pregnant at the time of termination.

It should be noted that a pregnant employee or an employee returning from a maternity leave have certain rights to continued employment. A pregnant employee also has the right not to be discriminated against in employment based on the pregnancy. The Court did not specifically state that additional damages were awarded because Ms. Harris was terminated as a result of the fact she was pregnant (a breach of both the Employment Standards Act and the Ontario Human Rights Code) but for the mere fact that the employer knew she was pregnant. Pregnant employees have rights to continued employment and against being discriminated against because of pregnancy. Courts, as in Harris case, may also award additional damages in a wrongful dismissal action because the employee was pregnant at the time of termination. An employee in like circumstances would be well served to seek legal advice based on the various remedies, limitation periods, and damages which may be applicable.