Tuesday, 10 March 2015

Termination One Day After Employee Disclosed Pregnancy Deemed Discriminatory

Once an employee discloses that she is pregnant and/or intends to take pregnancy or parental leave, an employer must tread carefully.  But what about the situation where the employee discloses her pregnancy to a co-worker?  Should the employer be deemed to be aware of her condition?  In a recent case before the Human Rights Tribunal of Ontario (the "HRTO"), an employer was found to have discriminated against a pregnant employee, despite denying any knowledge of her pregnancy.

In Lugonia v. Arista Homes, the Applicant was hired by the company on a one-year contract to cover for the absence of the receptionist, who was about to commence a pregnancy and parental leave.  Between the time of hiring, and her start date, the Applicant learned that she was pregnant, but did not disclose this information to the company's CFO or its Office Manager (who had hired her).  She commenced working two shifts a week for the first month, shadowing the regular receptionist to learn the role, before taking over her duties on a full-time basis.  In the Applicant's view, nothing remarkable occurred on the first two days that she worked for the company.  However, on the third day, she disclosed to the regular receptionist that she was also pregnant.  According to the Applicant, the receptionist suggested that she not disclose her pregnancy for 3 to 4 months, because it was not clear how the employer would react.  The Applicant did not say anything to the employer, and was given an employment contract to sign that day.  Despite the fact that the Applicant knew that she could not fulfill the one-year term of the contract, she signed the document.  When she attended the office for her fourth shift, she was called to a meeting at which her employment was terminated. 

The Applicant argued that the receptionist must have told the employer about her pregnancy, and that the employer then decided to terminate her employment.  The company denied any awareness that she was pregnant, and claimed that it had received troubling reports about the Applicant's attitude and demeanour.  The employer had previously struggled with at least one employee who exhibited similar behaviour, and so it decided to dismiss the Applicant early in the relationship as she was not a good "fit" with the organization or the culture they were trying to foster.  The company argued that its actions were not motivated or influenced by discriminatory considerations, as the decision-makers were not aware that the Applicant was pregnant at the time.  The receptionist had testified that she did not tell anyone about her conversation with the Applicant, although she had reported some concerns with the Applicant's attitude to the Office Manager on one occasion. 

In its decision, the HRTO observed that the Applicant bore the onus of establishing that it was more likely than not that the employer had discriminated against her on the basis of gender.  As in most cases before the Tribunal, any evidence of discriminatory conduct would be circumstantial, as most parties do not openly engage in such behaviour.  Given that the employer's defence depended on a finding that the company was unaware of the Applicant's pregnancy, the outcome was a function of the credibility of the various witnesses.  After reviewing the testimony and the parties' arguments, the Tribunal concluded that the three witnesses for the company were not credible.  First, the timing of the dismissal supported an inference that the CFO and Office Manager were aware.  Prior to her disclosure to the receptionist, there had been no criticism of the Applicant's performance or conduct. In light of this questionable timing, the HRTO considered the employer's reasons for terminating the Applicant's employment, and found them to be rather thin.  Despite the 'probation' clause in the Applicant's employment contract, it was not credible that the company would engage in a lengthy job competition, hire the Applicant, and then terminate her after her 3rd day of work based solely on one or two comments that the receptionist made to the Office Manager "in passing".  Given these concerns with the evidence of the employer, the HRTO concluded that it was more likely than not that the Applicant had been terminated due to her pregnancy.  In the result, the company was ordered to pay $15,000 in damages for injury to the Applicant's dignity, feelings and self-respect.  The employer was also ordered to hire an expert to assist it in the development of a human rights policy.

Aside from confirming that "honesty is the best policy", this decision highlights the importance of carefully documenting discussions that may have human resources impact, and to avoid taking action precipitously.  When dealing with any employee, including a worker on probation, it is imperative to ensure that any concerns regarding performance or conduct are documented and addressed with the employee.  While it may be tempting to 'pull the trigger' early in the relationship if it is determined that a new employee is not going to work out, the purpose of a probationary period is to afford the worker an opportunity to show what they are capable of.  Three days is simply not enough to form an opinion, particularly if the employee is only shadowing another staff member.  In this case, the employer may have had an opportunity to deal with the issue appropriately (i.e., by confronting the employee with its awareness of her pregnancy and the fact that she had signed a one-year contract knowing that she could not fulfill her side of the bargain).  Having failed to do so, it fell back on "fit", one of the weakest and most suspicious reasons for dismissal an employer can offer.

If you need guidance on navigating a challenging employment issue, do not hesitate to contact Lance Ceaser for expert, practical advice.


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