Pregnancy does not always require sick leave

As much as the Human Rights processes in this Province and others are maligned in some circles for their treatment of some less clear cases, both in my practice and in my review of the Human Rights Tribunal's jurisprudence I am often shocked by some of the instances of overt discrimination which still occur in workplaces.

In the high profile 2009 case of Maciel v. Fashion Coiffures, Jessica Maciel was terminated from her new job when she revealed that she was pregnant. That received a lot of media coverage, but is not alone. Similar cases include Guay v. 1481979 Ontario (2010) and Bickell v. The Country Grill (2011).

Almost invariably, there's a fight on the facts. In Maciel, the employer claimed not to have known about the pregnancy, but said that the termination was brought on instead by Maciel allegedly asking for a part-time schedule. Maciel denied having asked for a part-time schedule, and on all the facts the Tribunal found Maciel's account to be more plausible. In Guay, the employer claimed that the termination was motivated by performance concerns, which the Tribunal didn't entirely reject, but found that the pregnancy was also part of the motivation. In Bickell, the employer did not file a response.

Last week, the Tribunal released its decision in Graham v. 3022366 Canada Inc., in which there was surprisingly little conflict on the facts.

The Facts

The employer was a security company, and Graham was a "mobile patrol officer" who started her job in 2007 and had been quite successful and competent. Graham found out that she was pregnant in May 2009; this was unplanned, and in fact her relationship with the father had ended. Graham notified the office manager of the pregnancy, who told her to tell Condie (owner and president of the employer).

They met the following Monday (May 11), and Condie told Graham that it was against company policy for pregnant employees to remain on the shift schedule, so she would be immediately removed from the schedule. She was given a letter to take to her doctor so that she could apply for EI sick benefits. Condie was under the mistaken belief that this would not affect the parental leave benefits she would receive.

First an unplanned pregnancy, now suddenly unemployed with only the modest EI benefits to live on, Graham sought other employment, including both a minimum-wage retail position and a short-lived office job with another security company...and when Condie found out about that one, he fired her.

The Issues

As I said, there was little dispute on the facts. The employer's position was that the dangerous nature of the work was inappropriate for pregnant women, and that a pregnant woman on the job would be at increased risk, or alternatively would cause other workers to take unnecessary risks. Therefore, the employer argued, taking her off the job was necessary from a health and safety perspective. The employer did not advance any expert evidence or empirical data to support this contention, but were based on what the Tribunal called "stereotypes and assumptions...unsupported by fact."

The absence of any objective evidence of the health and safety concerns was probably fatal to the employer's case. The evidence of Graham and others was that the job does not, in fact, involve physical altercations. And Condie's decision to treat Graham as being immediately disabled and unable to complete her duties is problematic: Graham wasn't looking for accommodation; in fact, her pregnancy proceeded without complications and she maintained her regular fitness schedule throughout, and felt that she could certainly have continued her ordinary duties at least until August or September, at which point she expects that she might have asked to be assigned other duties.

The Lesson

Lesson #1: When dealing with people who may require some level of accommodation (due to pregnancy or disabilities), it is far preferable to reach a mutually agreeable manner of moving forward. There is some jurisprudence to suggest that the employer has to be proactive in determining whether accommodation is necessary, but before forcing an employee into unwanted accommodation the employer must make sure not only that the measure is necessary, but also that it can prove that the measure is necessary. Tread carefully.

Lesson #2: It is important that employers seriously consider the consequences of the Human Rights Code on employment practices and policies. Saying "It's just our policy" will not excuse human rights breaches. (I've seen that in my own practice, as well, including communications from opposing counsel using an appeal to a company policy as an attempt to justify absurdly discriminatory practices, such as a requirement that female employees wear skirts, not pants. [Really, what century is it???] To entrench unlawful discrimination in a company policy likely makes the discrimination worse, not better, and at a minimum easier to prove.)

What sometimes shocks me even more than the discrimination itself are some of the reactions to it in the public. Jessica Maciel was heavily criticized in the "comments" of every online publication for not having disclosed her pregnancy during the hiring process. Why should that be important? Then she simply would not have been hired, and the discrimination would have been just as illegal but harder to prove.

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This blog is not intended to, and does not, provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Different Standards of Misconduct Justifying Termination

Quite often, even those well-versed in employment law will speak of the standard of misconduct justifying termination as if it is one, uniform standard. It is easy to blur the distinction between "just cause" at common law (which would remove an entitlement to reasonable notice), misconduct justifying termination without notice under the Employment Standards Act, 2000, and misconduct which would render a person ineligible for EI benefits. The first distinction is between "just cause" and ESA misconduct - "wilful misconduct, disobedience or wilful neglect of duty".

Traditionally, the question on a wrongful dismissal action (where liability is in dispute) is whether or not there is "just cause", and the analysis ends there. But the Ontario Labour Relations Board has developed a line of jurisprudence suggesting that there is a difference in the two tests:

In addition to proving that the misconduct is serious, the employer must demonstrate, and this is the aspect of the standard which distinguishes it from ‘just cause’, that the conduct complained of is ‘wilful’.

Similarly, a recent case from the Superior Court of Justice finds the same distinction: In Oosterbosch v. FAG Aerospace Inc., Justice Haines held that there was just cause, but the threshold for ESA misconduct was not met, so the employee was awarded statutory notice and severance:

[19] A person is reckless when he engages in conduct without regard for the outcome or consequences. Notwithstanding the number of infractions recorded I do not see that the conduct of the plaintiff rises to that level. He was undoubtedly careless and the persistence of that carelessness justified his dismissal. I would not, however, characterize his offending behaviour as “wilful misconduct, disobedience or wilful neglect of duty” that would disentitle him to receipt of termination and severance payments under the provisions of the Employment Standards Act, 2000.

I'm watching to see if there is an appeal.

Then there is the Employment Insurance Act, which disqualifies claimants who lost employment "because of their misconduct". Does this line up with common law "just cause"? The answer to that would appear to be No. In 1999, the Ontario Court of Appeal released their decision in Minott v. O'Shanter, a wrongful dismissal case.

By way of background, the employee had applied for EI benefits and been refused on the basis that his termination resulted from misconduct. He appealed the decision to the Board of Referees and the employer did not participate in the process, but he lost the appeal anyways. The employer then argued that the employee was estopped (barred) from re-litigating the issue in a wrongful dismissal action.

The Court of Appeal held that there were two central problems with this argument. First, because the employer didn't participate in the process before the Board of Referees, the issue hadn't been decided as between the employer and the employee. Secondly, because the Board of Referees hadn't made specific evidentiary findings, it was difficult to say that the issue being argued was the same.

The Court of Appeal also raised concerns in that the EI adjudication process is much more summary with less money at stake than in a Court proceeding, and there seemed to be a fairness concern if a finding in a quick low-stakes EI proceedings would later bind the parties in a longer higher-stakes proceeding with greater procedural protections.

Contrast this to Korenberg v. Global Wood Concepts, a 2005 judgment by Justice Harvison Young (former Queen's Law dean): In this case, the employer had appealed the EI Umpire's decision to the Board of Referees and lost, with the Board of Referees concluding that there was no misconduct. The employee then sued in wrongful dismissal, and the employer tried to allege just cause. The Court distinguished Minott on the basis that the employer was arguing the same misconduct that the Board of Referees found hadn't occurred. The employer had participated in the EI process in this instance, and thus was simply trying to relitigate the issue of the misconduct, and was estopped from doing so.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.