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Employer will lose even if part of the reason for termination relates to discrimination

Everyone knows that for the first three months an employee is on probation and can be terminated without pay in lieu of notice, right? Well, not always. Not if even part of the reason for the termination relates to a pregnancy.
 
Donna was hired to be a receptionist at a small company. At the hiring interview, she disclosed that she was trying to get pregnant but to their credit, that didn’t stop the company from hiring her. (Unfortunately, it would have stopped many). She seemed like a bright and personable young woman who could fit into the corporate culture. They were probably impressed that she disclosed her plans even though she did not have to.
 
Things started out fairly well although her co-workers did start to notice that she spent a fair amount of time on her cell phone taking personal calls that more often than not left her upset. She would run off to the bathroom crying and one of the other workers would have to cover the reception desk.
 
It seemed like she was spending a fair amount of time surfing the internet and didn’t understand that casual Fridays meant that the other days of the week were not casual. She would often show up in jeans.
 
Notwithstanding the fact that she was a brand new employee and under probation, on a number of occasions she showed up late claiming that her car wouldn’t start or that she had slept in. Again, other employees would have to cover her station.
 
The upsetting phone calls seemed to be fairly frequent and it affected her ability to learn her job. Although she was good when she focused, her mind often wasn’t on work.
 
Soon after she started she discovered that she was, in fact, pregnant. When she needed time off for doctors’ appointments, the employer was cooperative and allowed her to work through her lunch to cover the time.
 
Unfortunately, about two months after she started, Donna had a miscarriage at work one Friday morning. The employer was sympathetic and made arrangements for her partner to come and take her home.
 
Donna showed up for work on Monday and worked the entire day although she was experiencing pain. She went to the hospital after work for an ultrasound but the department was closed and she couldn’t get one until the next morning. She called into work and let her supervisor know what was happening. The ultrasound revealed that she needed surgery for an infection and she let the Employer know she would be away for all of Tuesday. In fact the surgery didn’t happen until 3 a.m. on Wednesday morning. She went home exhausted from the surgery and slept the day through. Neither she nor her partner called in to say that she would not be there.
 
When Donna showed up for work on Thursday, she was terminated. The reason given was absences including the fact that she hadn’t called in the day before. She was told that she was a great worker when she was there.
 
Donna filed a complaint with the Ontario Human Rights Tribunal claiming that she had been the victim of discrimination in her employment on the basis of her gender. Although the employer admitted at the hearing that its timing was deplorable, its position was that Donna’s termination had been contemplated long before the miscarriage. Why should Donna’s pregnancy protect her from a termination that was going to happen anyway as a result of her own poor performance?
 
The employer had not hired a lawyer to defend it in this complaint but if they had they probably would have settled long before the hearing.
 
The law is quite clear. If even part of the reason for some discriminatory action like a termination relates to a prohibited ground of discrimination under the Ontario Human Rights Code, it is over. It might as well be the whole reason.
 
No matter how poor Donna’s performance was and how much she deserved to be terminated, the employer was never going to be able to explain the timing. If the employer waited a week after Donna returned to work and Donna’s performance issues had continued, there probably would have been no successful complaint. Of course, if they had terminated her before the miscarriage and the resulting absences, the same would have been true.
 
It became clear to the adjudicator that at least part of the reason for the termination was the absences resulting from the miscarriage and subsequent surgery. In the circumstances, Donna’s failure to call in the Wednesday and say she wouldn’t be at work was entirely excusable.
 
Although she was only employed for about two months, Donna ended up with an award of two months lost wages and $10,000.00 in general damages for the violation of her human rights.
 
When it comes to terminations, timing is everything. Once the employer terminated Donna the second she returned from an absence due to a pregnancy issue, this story was over even if they didn’t know it. The end result was predictable.
 
It’s a simple question and a simple answer: what changed between the Thursday afternoon before the miscarriage when Donna was not being fired and the next Thursday morning when she was? The only possible answer is that Donna was absent as a direct result of her pregnancy and therefore her gender. Given that the employer knew that she was undergoing surgery, failing to call in on the Wednesday was irrelevant.
 
A few days of patience and another lateness or other performance issue from Donna would have made this a very different tale.
 
As published in the Hamilton Spectator, August 9, 2010
 
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com