After celebrating International Women’s Day last week, it’s a good time to reflect on how employment law is evolving for women.
The rather dismal statistics concerning women in leadership continue to make headlines. As an example, only 7.4% of Fortune 500 companies had a female CEO in 2020.
Barriers to entering leadership positions include the disproportionate toll parental leave can have on a woman’s career. But a recent Ontario case may help the career paths of pregnant women who are terminated.
The case involved Sarah Nahum, a Director of People and Culture at Honeycomb Hospitality Inc. Nahum had been employed by Honeycomb for four-and-a-half months when she was terminated in the fall of 2019. She was five months pregnant at the time.
Nahum sued for wrongful dismissal damages, claiming eight months of notice on her termination. Honeycomb argued that a two-month notice period was “generous.”
At a summary judgment motion heard before Madame Justice Jasmine Akbarali, the court found that Nahum’s service was “very short,” that she was well educated with a Bachelor of Arts Degree and an MBA, and her age of 28 years should not be a barrier to re-employment.
Justice Akbarali noted that Nahum had applied for at least 36 jobs before her baby was born, and following the birth of her child she took only a two-month break from looking for work. Since then, she applied for at least 75 positions.
The Court found Nahum had also started a “side hustle” selling gift baskets filled with self-care products for new mothers, but she had only sold one of the baskets.
On the issue of her pregnancy, Justice Akbarali wrote: “The prospect of a new employee who will shortly require a lengthy leave will be unappealing to many employers and may not meet bona fide needs of their organizations.”
Justice Akbarali found that a reasonable notice period of five months was appropriate even though Nehum only worked for Honeycomb for four-and-a-half months.
The Court found that there is no principled reason why, when determining the damages of a wrongfully dismissed employee, their pregnancy at the date of their dismissal should not factor into their reasonable notice period, when their pregnancy is reasonably likely to negatively impact their ability to find alternative employment.
The decision was upheld on appeal.
This case accurately captures the dynamic in workplaces today. While pregnancy shouldn’t be a barrier to employment, it is. One cannot ignore the plight of a pregnant woman left unemployed or accept that her chances of reemployment are no different than any other terminated employee.
This case presents new protections for women who find themselves in a precarious working situation while expecting a child, and over a parental leave. As far as employment law goes, this is a positive step for women everywhere.
Key points to keep in mind include:
Termination during a pregnancy may be discriminatory — While discrimination allegations were not raised in Nahum’s case, there may be occasions, where, after informing an employer of one’s pregnancy that a termination summarily follows. In such cases, a breach of the Human Rights Code may be an appropriate claim to make.
Short service is not always an important factor — Though Nahum only worked four-and-a-half months, her five month notice period award clearly establishes that the typical factors, such as age, length of service, character of employment and availability of similar employment do not, alone, dictate the length of a notice period.
Pregnancy does not absolve need to look for a job: The fact that Nehum applied to 36 jobs after her termination from Honeycomb weighed in her favour.
On to your questions for this week:
Q. I have been on unpaid leave from my job due to non-vaccination. I work entirely from home. Now that the province has lifted vaccine mandates, can my employer still keep me on an unpaid leave?
A. If you are working remotely, it may not be reasonable for your employer to have placed you on an unpaid leave at all. Depending on your situation, you may be in a position to assert a constructive dismissal. Even though the province has dropped the vaccine mandate requirement, private organizations can determine their own policies with respect to whether or not vaccination is required for employees, within reason.
Q. I was recently terminated and my employer gave me eight weeks of pay, even though I had worked there for 13 years. When I asked why I was paid so little, my employer wrote to me claiming that this was all it was required to pay me according to employment legislation. Is this true?
A. You could be entitled to much more compensation on your termination. This will depend on whether or not you signed an employment agreement, the size of your employer’s payroll, and other factors. It is possible that you may be entitled to common law damages including salary, bonus, continuation of benefits, pension, RRSP and possibly other benefits. To get a sense of the range of common law damages you could be entitled to, get legal advice.
Have a workplace issue? Maybe I can help! Email me at [email protected] and your question may be featured in a future column.
The content of this article is general information only and is not legal advice.