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Jessica Maciel v. Fashion Coiffures LTD and Crystal Coiffures LTD, 2009 HRTO 1804
Updates to the legislation continues to attempt to further protect new parents. Unfortunately when discrimination in the workplace happens and an employee is terminated on that basis of their family status, it is important to know what their legal options may be.
Maciel, the applicant was hired as a receptionist at a salon. At the time of hiring Maciel was 4 months pregnant, on the first day on the job she informed the manager of her pregnancy and was terminated shortly thereafter.
The applicant brought a claim with the HRTO for discrimination on the basis of sex (pregnancy), contrary to sections 5(1), 10(2) and 9 of the Ontario Human Rights Code, RSO. 1990, c. H.19 as amended (the “Code”)
The applicant led evidence that during her orientation she disclosed her pregnancy to a co-worker who warned her that a past employee had some issues in a similar circumstance and advised it would be better to be upfront with her manager Ms. Conforti. Maciel took her advice and requested a meeting. Maciel testified that the first the meeting was positive, however Ms. Conforti expressed concerns about her long-term availability. Shortly after Maciel was sent home, the following day she received a call and advised that she cannot fill the receptionist position due to availability.
The parties presented two different version of events. The applicant’s version of events demonstrate discriminatory treatment while the respondent’s version outlined concerns with Maciel’s commitment to fulltime hours and a request for part-time work.
The Tribunal found on the balance of probabilities that the applicant’s pregnancy was a factor in the respondent’s decision to terminate her employment. The applicant was awarded 21 weeks of loss wages at $9,060.00 along with $12,100.00 for the gross total loss of maternity and parental leave benefits. This had a minor deduction for income earned.
The Adjudicator, Overend relied on Dodds v. 2008573 Ontario Inc., 2007 HRTO 17 wherein it states:
It is reasonably foreseeable that a pregnant woman will be unable to find alternate employment during her pregnancy to make up for any shortfall in eligibility requirements to qualify for full maternity leave and parental benefits.
With respect to the maternity and parental leave, the applicant would have met the threshold for eligibility had her employment continued. The benefits would have been payable at 55% of the applicant’s averaged insured earnings (i.e., $242 / week) for 50 weeks. Due to Maciel’s termination she was not able to accumulate the required Insurable Hours and was therefore ineligible for the benefits. It was the company’s actions that disentitled her to this benefit, but for their actions, Maciel would have received the EI coverage provided to new parents.
Overend also ordered $15,000.00 for the infringement of the applicants right to be free from discrimination under the Code. Section 45.2(1) of the Code authorizes the Tribunal to order compensation for injury to dignity, feelings and self-respect as supported in ADGA Group Consults Inc. v. Lane, 2008 (ON S.C.D.C), the court noted:
Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant and the seriousness of the offensive treatment.
Maciel gave evidence of the impact the termination had on her, and the distress caused by the company. Maciel suffered depression, and the financial situation put an unnecessary strain on her and impacted her ability to enjoy quality time with her young child.
Overend further ordered the company to develop, implement and distribute a written policy on the accommodation of pregnancy within the workplace.
Employers must be very careful when terminating a pregnant employee. Employers are NOT permitted to terminate an employee BECAUSE they are pregnant. The remedies ordered in the Maciel decision highlights the huge liability on a company when their actions have discriminatory motives and impact the employee’s rights.
The principle in any wrongful dismissal is make the employee “whole” to provide them with the entitlements they ought to have but for their termination. This circumstance is no different. If an employee is pregnant the company’s liability increases, as it is reasonably foreseeable that the termination will have an even greater impact on the individual than in normal circumstances.
Employees or employers in a similar circumstance should contact a lawyer to ensure they are complying with the appropriate legislation and avoid infringing on employee rights.
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