The Story
Sylvia Osvald began work as a receptionist for Videocomm in November 2006.  A few weeks after starting her job she told her employer that she was pregnant.  She began to take time off to attend doctor’s appointments related to her pregnancy.  She missed hours but made them up at lunch.  Unfortunately on January 19, 2007 Sylvia suffered a miscarriage at work.  The evidence showed it was a very terrible ordeal and Sylvia was very upset.  She was almost 20 weeks pregnant by this time and she was alone in the bathroom when the miscarriage occurred.

She returned to work the following Monday.  On the following Tuesday she suffered from an infection and required immediate surgery.  The surgery took place at 3:00 a.m. on the Wednesday and she returned home later that morning.  She slept through the day and did not call her employer to advise that she would not be coming into work.  She did testify that she did tell her employer that she would need to take a day off if she required surgery.   She went to work on the following Thursday and was advised that “her services were no longer required” and directed her out of the back door of the offices.  The evidence that was in dispute at this human rights hearing was largely a question as to why she was fired.

The Company’s Position
The company did not have an issue with the pregnancy.  They argued that employees that became pregnant were fully supported.  They stated that they terminated her for performance related issues, particularly for excessive absenteeism and the inability to leave her personal problems at home.  They often found her teary and upset by phone calls to and from family members which affected her work.  They spoke to her on numerous occasions.  They complained about her surfing the internet during business hours.  She always looked to have been crying and not happy.  They were always concerned about her moods.  She seemed distracted all the time and unable to concentrate on her training.  She was chronically absent.  She often called in late.  She exceeded the company’s policy of 5 sick days within the first few weeks of her employment.  She was absent 9 times in less than 3 months (despite this, they could not produce a calendar to support her absences).  The Human Rights Tribunal found that they could not rely on the employer’s evidence about the number of days Sylvia was absent.

Sylvia disagreed.  She testified that all her absences were pregnancy related and were made up during her lunch hours.  She was only absent 3½ days because of illness.  She took an approved day off to support a friend in Court.  She was absent for the period after her miscarriage.  The Tribunal accepted the company’s perception that Sylvia was frequently absent, but that perception was exacerbated by the series of absences associated with Sylvia’s miscarriage and is directly connected with the termination which followed Sylvia’s return to work.

The Tribunal also noted that Ms. Davidson, the warehouse manager at Videocomm, said to Sylvia at the termination meeting “you were a great worker when you were here” which the Tribunal accepted as evidence connecting her absences, which were largely pregnancy related, to the termination.

A Ms. Ferjo, candidly admitted that her time was deplorable, coinciding as it did, with Sylvia’s miscarriage.  However she was determined to terminate Sylvia within her probationary period.  The Tribunal found however, that had they waited until the end of January to terminate her according with the pay cycle, it would have allowed her a short period of time to recover from the ordeal of her miscarriage and would have still fallen within Sylvia’s probationary period.  There was no reasonable explanation for carrying out the termination on the day of her return from the miscarriage and subsequent surgery.  In the Tribunal’s view, the company’s decision to terminate Sylvia when they did was based on or at least in part with Sylvia’s absences which were directly linked to her pregnancy.  For all of these reasons, connection between Sylvia’s absenteeism and her pregnancy, the failure to produce documents supporting the respondent’s claim of excessive absenteeism, and the respondent’s failure to provide a reasonable explanation for why they terminated her the day after her surgery, ultimately wound up in the Tribunal determining the Human Rights Code was in fact breeched.

With respect to the termination issues, the Tribunal went through the issues of her being frequently upset, crying, having personal issues, out in the hallway talking on her cell phone and other issues that prevented her from fully concentrating on her employment.  They noted that Sylvia gave evidence that she was never disciplined either orally or in writing for any performance related issues.  A copy of her employment contract included the company’s disciplinary procedures which they did not follow.

The Tribunal found that it became clear through the course of the hearing that the employer misapprehended it’s obligations under the Human Rights Code and its dealing with Sylvia.  Throughout the hearing Ms. Virgil, on behalf of the respondent, relied on the view that the respondent had a right to terminate Sylvia because she was in a probationary period without providing any justification.  The Tribunal found that there was no doubt that Ms. Virgil believed that she was not terminating Sylvia because of her pregnancy in that sense however, a finding that factors related to Sylvia’s pregnancy were among reasons for the termination is sufficient for a finding of liability under the Human Rights Code.  In short, because her termination was somewhat related to the pregnancy, the Tribunal sided with Sylvia.

What was the Remedy?
Sylvia claimed compensation for lost income.  The Tribunal awarded $2,500.00 for retraining and outplacement counseling.  The Tribunal also awarded Sylvia two months lost wages, $10,000.00 as monetary compensation for injury to dignity, feeling and self-respect and prejudgment interest.

Lastly, the Tribunal ordered that the company, at its own expense, hire a human rights consultant approved by the commission and provide a mandatory human rights training program about human rights in general with a particular focus on pregnancy related rights.

The human rights tribunal was of the view that the applicant made out a prima facie case of discrimination on the basis of sex (pregnancy), contrary to sections 5(1), 10(2) and 9 of the Code and that the respondents failed to prove a non-discriminatory explanation for the precipitous termination of the applicant’s employment. There are certain remedies set out by S. 42.5 of the Human Rights Code, one being monetary compensation. Compensation was a big issue in this hearing given that the employer prohibited the employee from satisfying “fresh hours” as required for HRDC in order to qualify for maternity leave benefits.

The applicant testified that after she was terminated from the respondents’ salons, she attempted to look for work, but did not have any success. She attributed her lack of success, in part, to the fact that her pregnancy was increasingly obvious to any potential employer. She had two interviews, but at each of these interviews, testified that the interviewers expressed their opinion that the physical nature of the work would be dangerous for a pregnant woman. At seven months pregnant, she gave up her job search.

The tribunal noted that “With no insurable hours, she was ineligible for maternity and parental benefits following the birth of her son.” As pointed out in paragraph 74 of Dodds v. 2008573 Ontario Inc., 2007 HRTO 17 (CanLII): “It is reasonably foreseeable that a pregnant woman will be unable to find alternate employment during her pregnancy to make up for any shortfall in eligibility requirements to qualify for full maternity leave and parental benefits.” The tribunal found that with respect to the maternity and parental leave, the applicant would have met the threshold for eligibility had she continued to work with the respondents until her due date. The applicant testified that she was planning to and was physically able to work until her due date. The tribunal found that these benefits would have been payable at 55% of the applicant’s averaged insured earnings (i.e., $242 / week) for 50 weeks. The gross total loss of benefits is $12,100.00. Employers – please don’t interfere with the employment of a pregnant woman without the advice and opinion of an employment lawyer. A small business like the respondents obviously did not foresee the issue of discrimination having a probably impact on Ms. Maciel not qualifying for maternity leave benefits. If you are a small business like the repondents you need to protect yourself by learning your rights.

You can contact Matt Lalande here for more information and you can read a copy of the decision below.

Harper said extending the benefits nationwide would cost about $150 million and would be largely self-financing once people paid into the fund through premiums. The proposed system would be voluntary. Self-employed Canadians would opt in to pay premiums and, in return, would be eligible for the same type of benefits as other Canadians. They would have to opt-in at least six months prior to making a claim.

More than 2.6 million Canadians are self-employed, one-third of which are women, Harper said. Harper’s policy details were not available. The party says exact premium amounts and payment levels would be set upon implementation, after a review by a new EI Insurance Financing Board. The goal is to help Canadians achieve the balance between work and family.  He’s got my vote.