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Partridge v. Botony Dental Corporation
The decision in Partridge v. Botony Dental Corporation, 2015 ONSC 343 demonstrates how the Ontario Human Rights Code, R.S.O. 1990 c. H.19. protects employees from discrimination on the ground of family status.
In its decision, the Court awarded $20,000.00 for family status discrimination against Partridge, a dental hygienist whose hours were changed following her return from maternity leave. The Defendant’s actions in this regard were found to be a reprisal for Partridge asserting her right to return to work to her position as an Office Manager. The award against the Defendant was designed to be a deterrent to the Defendant, and a warning to employers who are unwilling to accommodate childcare arrangements.
Lee Partridge (“Lee”) began working as a dental hygienist for Botony Dental Corporation’s (“Botony”) office at Big Bay Point Dentistry in March, 2004. Having been established in 2002, Lee was the first and only employee until further staff were hired a few years later.
As a dental hygienist, Lee was only paid for the hours she spent working on patient care; there was no guaranteed minimum hours per week. Lee was promoted to the role of Office Manager in 2007 and had consistent 9 a.m. to 5 p.m. hours working four days per week. As a manager, Lee would oversee approximately 9 employees.
During her time at Botony, Lee took two maternity leaves – one from June 2007 to July 2008 and another from June 2010 to July 2011. She was terminated on July 19, 2011, after 7 years and 4 months of service.
When Lee returned from her second maternity leave, she was advised that her position as Office Manager was no longer available and that she would have to assume her former job as a hygienist. This reduced her work hours significantly and there was no guarantee of minimum hours each week. Her employer was, in effect, asking her to work hours that she did not work even prior to taking her maternity leave, including times that knowingly conflicted with Lee’s daycare arrangements for her children. When Lee attempted to assert her right to be reinstated to her previous position and working conditions, the employer responded by way of reprisal.
At the time of termination, Lee was provided with a cheque for severance in the sum of $7,605.50, representing seven weeks’ pay. Her employer alleged wilful misconduct, disobedience and wilful neglect of duties.
At trial, Justice Healey outlined the following issues:
1. Whether Lee was wrongfully terminated;
2. If she was wrongfully terminated, what notice period Lee was entitled to;
3. Whether Lee was subject to reprisal as a result of her complaint; and,
4. Whether the Defendant’s conduct with regard to Lee was in violation of the Ontario Human Rights Code?
The Court’s Findings
On Just Cause
The law is clear in that before terminating a contract, an employer has to provide proper notice or pay in lieu thereof. If an employer is alleging “just cause” for dismissal, they bear the burden to establish that, on the balance of probabilities, cause existed for terminating the employee. The threshold of misconduct which is required for a just cause dismissal is high and the misconduct once established will be weighed against the context and history of the employee’s employment.
In this case, the Court found that just cause was not established. The evidence was weighed against the context of Lee’s work history with Botony. Lee was never given a written performance appraisal or warning during her entire time with the company. Lee was found to be a high-performing, reliable and valued employee throughout her employ with Botony.
On Reasonable Notice
Lee worked for Botony for over 7 years, working approximately 4 years and 4 months as an Office Manager. She had the greatest responsibility in the office of approximately 10 employees, supervising the hygienists, dental assistants and receptionists. The owner was her direct supervisor and placed a great deal of trust in Lee. As a high-level employee, this warranted a longer notice period for Lee.
The Court determined that 12 months was the appropriate notice period Lee should be given, awarding her $42,517.44 in damages for wrongful dismissal.
On Statutory Obligations – Reprisal and Human Rights
The Court found that Botony violated the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”). The ESA provides employees with the statutory right to go on unpaid pregnancy or paternal leaves and return to their same position of work after their leave ends. The ESA further provides that an employer cannot intimidate, dismiss or penalize an employee because they ask for reinstatement as per their rights.
In this case, Lee was forced to take on the position of Hygienist, even though the Office Manager position was still open.
The Ontario Human Rights Code, R.S.O. 1990, c. H.19 (”Code”), prohibits discrimination based on family status. As per Johnstone v. Canada (Border Services) 2014 FCA 110, family status includes parental obligations such as childcare.
The Court found that Botony was unable to show that the hours they required Lee to work was a bona fide occupational requirement or that she could not be accommodated without undue hardship to the employer. As such, the Court found that Botony discriminated against Lee on the basis of family status.
The Court found that the discrimination arose from the employer’s willful and reckless disregard for their obligations as an employer and awarded Lee the sum of $20,000.00 for breach of the Code. The Court awarded this amount to reflect the serious nature of the breach and to deter the Defendant from future discriminatory conduct.
Advice for Employers
Employers have to be aware of their duty under the ESA and the Code. Under the ESA, employers have a duty to reinstate employees that go on maternity or parental leave and failing to accommodate employees’ childcare needs may result in discrimination under the Code. If you are unsure as to whether your actions with regard to an employee could be a violation of the Code or employment standards legislation, contact Monkhouse Law today for a free consultation.
Advice for Employees
Employees should be aware of their protected rights under the ESA and the Code, in particular that their employer cannot unilaterally change their work terms or discriminate against them based on a protected ground. If you are unsure as to what your rights are, or whether a violation has occurred, contact Monkhouse Law today for a free consultation.