Diplomacy trumps labour law for pregnant secretary

About 18 months after Sally began working full time for an employer as a secretary, she gave birth. A few days later she got a Record of Employment in the mail indicating that she was off for a maternity but that she would not be returning because she had been replaced.
Sounds like a hands down case, right? Clearly, Sally’s right to be free from discrimination on the basis of her gender and family status pursuant to the Ontario Human Rights Code had been violated. Well, usually you would think so.
Sally, however, had the unfortunate luck of being employed by a consulate in Toronto for a foreign country. The State Immunity Act indicates, in part, that a foreign state is immune from jurisdiction of any court in Canada. There is an exception for commercial activity.
The State Immunity Act evolved out of hundreds of years of court decisions which recognized that sovereign nations relate to one another as independent equals who do not submit to one another’s laws since that might embarrass or offend the dignity of the sovereign nation. Kings and queens don’t bow to other kings and queens. For hundreds of years the wheels of diplomacy and cooperation have been greased and facilitated by this concept. King Jack is not going to see King Bob in his country to talk about a peace treaty if King Bob is going to try to have King Jack arrested under some trumped up law. If Canada wants foreign countries to set up embassies and consulates here to facilitate communication and grease the wheels of diplomacy and economics, we are not allowed to stick our nose into how they run those consulates and the reasons for the decisions they make.
18 years ago the Supreme Court of Canada decided that civilian personnel at an American military base in Canada could not unionize since that would ultimately relate to the management and operations of a foreign state’s military base. The Supreme Court did recognize that an employment contract, whether in writing or verbal, is a commercial contract and activity and the employees could sue for unpaid wages. So, employees can sue a consulate for unpaid wages but cannot have the right to collective bargaining and the right to strike? But whether or not one pays employees their wages is also a matter of the management and operation of the base.
The adjudicator in Sally’s case decided that for Sally’s complaint to go ahead the Ontario Human Rights Tribunal would have to examine the reasons and circumstances of Sally’s departure from her employ as well as the reasons that the consulate hired someone to replace her as soon as she had a baby. As a result, this would constitute an embarrassing interference with that country’s sovereign rights.
Sally’s case was thrown out. So now we have a situation where you can clearly sue a consulate for unpaid wages, which is a right you have under the Employment Standards Act, but not pursue a claim for reinstatement after a maternity leave or damages resulting from the termination.
If you work for a consulate or embassy you have some rights that other employees in this country have but not all of them. If you want to know which ones you have and which ones you do not, good luck, nobody knows.
If you have a disagreement with a consulate over the terms of a commercial contract, you can take them to court. But if you work for them and they want to violate your human rights and ignore the maternity leave re-instatement rights you have under the Employment Standards Act, too bad
Unfortunately, Sally was unrepresented. There was no discussion in this decision, and there should have been even if Sally did not have a lawyer, of whether Sally’s rights under the Canadian Charter of Rights and Freedoms had been violated. That is the top law in Canada and it governs all others. Any law that offends it can be struck down. Section 15 says that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Sexual orientation is deemed to be included in that wording by the courts. Sally was clearly discriminated against based on her sex. Only women can give birth.
One of two things needs to happen, somebody like Sally needs to take this issue to a higher court and point out Section 15 of the Charter or the federal government needs to change the State Immunity Act to make it clear that employees of consulates and embassies in Canada have all the same protections as everyone else.

Ed Canning is a partner practicing in the Labour & Employment Group at Ross & McBride LLP.

 This article was originally published in the Hamilton Spectator, April 4, 2011
Ed Canning
Ed Canning
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