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Bray v. Canadian College of Massage and Hydrotherapy – Terminated for Mat Leave
Employees who take time off for maternity leave find themselves in a difficult position, in that they must leave their workplace and then adjust to re-entering it a year later. The Human Rights Code, R.S.O. 1990 c. H.19. (the “Code”) protects employees from discrimination on the grounds of gender and family status in order to help employees going through this transition.
The decision in Bray v. Canadian College of Massage and Hydrotherapy 249 A.C.W.S. (3d) 349 provides a clear demonstration of the way in which the Code is applied to protect employees who are mistreated by their employer on the basis of sex (pregnancy).
Kelly Bray (“Bray”) was a registered massage therapist. She was hired as an instructor by the Canadian College of Massage and Hydrotherapy (the “College”) in 2004. She worked an average of 25 hours per week. The College was her main source of income, but she also had a private practice.
In October 2012, Bray started a maternity leave which ran until October of 2013. In July 2013, the College sent Bray her schedule for the coming academic year and told her that she would only be working as a teaching assistant, not supervising classes, albeit at the same rate of pay. Bray responded that she wanted to return to the same role she had held before her leave; the College’s scheduling coordinator told her to wait and see whether she could still handle her original role, as being a mother would be a lot of work and “a big adjustment.” Following this exchange, Bray filed an online complaint with the Ministry of Labour.
Bray returned to work in October. Her hours were unilaterally reduced to 19 per week, her gross weekly pay fell by one third, and she worked as an assistant for classes which she had previously taught outright.
In November, the Ministry of Labour contacted Bray about her complaint and asked her to provide a written summary of the events on which it was based. She did so. No evidence was present about whether the Ministry told the College about the complaint, but the Court inferred that the Ministry must have done so at some point in November.
In late November, Bray asked why she had not yet been given her schedule for the term starting in January. On December 16, the College emailed her to say that she had not been scheduled for any role in the January term. Bray asked why she had been removed from that term. The College told her that it did not require her services for the January term, but that she could apply to be considered for work in the May term.
Bray withdrew her complaint with the Ministry and sued for constructive dismissal.
When the matter proceeded to the Small Claims Court, the Court identified six issues in the case:
1. Was Bray constructively dismissed?
2. Was Bray entitled to reasonable notice of dismissal?
3. Was Bray subject to reprisal as a result of her complaint?
4. Did the College violate the Ontario Human Rights Code?
5. Was Bray entitled to aggravated damages?
6. Was Bray entitled to punitive damages?
The Court’s Findings
On Constructive Dismissal
The Court found that Bray had been constructively dismissed. By telling her that she would have no work and would receive no pay as of January 1, 2014, the College placed her on a suspension as of that date. Because the College gave Bray no indication of when she would work again, it was an indefinite suspension.
The Court noted that an employer has no right at common law to lay off an employee, even temporarily. Layoffs may be permissible where they are allowed for in the terms of the contract. Bray’s contract made absolutely no reference to the possibility of layoff or suspension. The College effectively reduced Bray’s salary to $0 as of January 1, 2014, thereby unilaterally changing the most fundamental term of her contract of employment.
The College’s argument that it had reduced Bray’s weekly hours to zero as a form of progressive discipline without telling her what she was being disciplined for was rejected.
On Reasonable Notice
Bray’s written contract stated that the College could terminate her employment “in accordance with the requirements as set forth within the Employee Policy Handbook.” Bray had never been given a copy of the Handbook, or told to review it; there had apparently been one copy sitting on a shelf at the College throughout her employment.
The Handbook contained a basic summary of the notice provisions in the Employment Standards Act, 2000, S.O. 2000 c.41 (“ESA”), but it did not specify that the employee’s right to reasonable notice of dismissal had been displaced, and contained no limiting language.
The Court found that the terms set forth in the Handbook were never clearly communicated to Bray, and that nothing in Bray’s contract gave her any indication that the Handbook contained terms which would limit her entitlement to notice at common law. Therefore, the Handbook had not been incorporated into Bray’s contract of employment.
The Court noted that, even if it had been, the ambiguous language in the Handbook should be interpreted contra proferentem, that is, against the interests of the employer, and thus would not have been sufficient to limit Bray to the minimum notice periods set out in the ESA.
Bray was a 34 year-old employee with 9 years of service in an industry where teaching jobs are rare. She was awarded 8 months’ pay in lieu of notice, based on her last complete year of income from the College. This amounted to $26,000. After being dismissed she spent more time working at her private practice. Her extra income from this practice was deducted from her damage award as mitigation income, and she was left with $17,700.
The Court noted that although the ESA prohibits employers from reprising against employees who make complaints to the Ministry of Labour, that the Act did not give Small Claims Courts clear jurisdiction to award damages against employers who did so. Even if the College’s actions were a reprisal for Bray’s complaint, the Court could not award damages for them.
On Human Rights
To establish that they have been discriminated against under the Human Rights Code, R.S.O. 1990 c. H.19. (the “Code”), a claimant must establish that they are a member of a protected group, that they were subject to adverse treatment, and that their membership in the group was a factor in that treatment.
The College’s email about motherhood being a “big adjustment” requiring Bray to take on a reduced role clearly identified Bray’s membership in a protected group (meaning her gender and her family status as a new mother) as a major cause of her adverse treatment. She had been discriminated against.
The Court found that there was little case law relating to the damages which should be awarded for discrimination under the Code, and awarded Bray $20,000 for injury to feelings, dignity, and self-respect.
On Aggravated Damages
Bray’s claim for aggravated damages was briefly dismissed because she had presented no medical evidence indicating that she had suffered mental distress.
On Punitive Damages
The College claimed that it had reduced Bray’s weekly hours to zero as a form of discipline because of a complaint it received in September 2013, and about which it never told Bray. The complaint was hearsay, in which a former student had allegedly complained about Bray leaving a class early on one occasion. The College had made no effort to investigate the complaint.
The Court found that if the College did in fact punish Bray for this complaint without explaining it to her or conducting any investigation, the punishment was totally disproportionate and the College’s actions were a violation of the duty to perform one’s contractual duties in good faith, recently established by the Supreme Court in Bhasin v. Hyrnew 2014 SCC 71.
The Court awarded Bray punitive damages of $5,000.
Bray’s damages totalled $42,700. However her award was limited to the Small Claims Court’s $25,000 jurisdiction.
Employers should be aware of their duty not to treat their employees differentially because of grounds protected by the Code. Even if the College’s reduction of Bray’s hours had been made in a good faith effort to make her life easier, it would have still been discriminatory. Similarly, employers should keep in mind the need for clear, unambiguous contractual terms, and the fact that employees can only be suspended or laid off when their contract specifically allows for this.
Employees should keep in mind the wide range of grounds protected by the Code, and the fact that their employers do not enjoy a presumptive right to lay off or suspend them.
If you have any questions about your employment situation or your rights and obligations under employment law generally, contact Monkhouse Law today for a free consultation.