Pregnancy and notice
She quit her job with the municipality and started with the company. Four and a half months later she was terminated without just cause. There was no employment contract setting out Samantha’s rights on termination. I have to pause to note that in normal circumstances Samantha might have been entitled to perhaps one month’s pay in lieu of notice at most and included in that would be a one week minimum under the Employment Standards Act. The fact that she quit one job to take the other would not change anything since the first job only lasted a few weeks anyway and Samantha was not induced to leave, she had applied for the job. The problem is that by the time Samantha was terminated she was 5 months pregnant and clearly showing.
She tried hard to find new employment but without success. She had one interview and did not get the job. She suspected, but could not know, that they decided to hire somebody who was able to start working right away and without an almost immediate interruption. She applied for 36 jobs before her due date. Samantha sued for pay in lieu of notice. She argued that the fact that she was pregnant and showing at the time of termination should increase the notice period to which she might otherwise have been entitled after such a short period of employment. The judge agreed and awarded her 5 months lost wages even though she had only been with the company for four and a half months. This is not the first case where the courts have noted that someone’s pregnancy could increase the notice period to which they are entitled. Other decisions, however, have only increased the notice period by a month or two above what it would have been otherwise. There was no suggestion in Samantha’s case that her termination had anything to do with her pregnancy.
The law has long recognized that sometimes an employee’s medical condition or disability can increase a notice period if it is something that would make it more difficult for them to find new employment. Clearly being pregnant is not a “disability” but I think we can all agree that a perspective employer may not be enthusiastic about hiring somebody who could soon be taking a 12 to 18 month maternity leave. They should be. They should ignore it. We should all ignore such factors. Unfortunately, the world is not as nice a place as we would like it to be. This decision is problematic for employers. They may proceed with a termination of a child rearing age woman thinking they know what their exposure is for pay in lieu of notice. It can be a big surprise if they find out after termination that the employee is pregnant and is claiming an increased pay-out because of that fact.
The employer’s lawyers at Samantha’s trial argued that increasing notice periods for pregnancies is a slippery slope. They argued that perhaps short people could argue that they should get a longer notice period because tall people are more likely to get the job. It could be extended to race, colour, creed, etcetera. The judge rejected this argument. The court stated “Nothing in this argument recognized the inherent barrier that pregnancy poses to most job searches – the impending absence of the perspective employee from a position for which they are not yet trained, in which they have not yet proven themselves, and in respect of which the employer is most likely seeking to fill an existing need. There is no reason to suppose that short people are going to need to take an imminent and possibly lengthy leave of absence shortly after being hired.”.
Part of the consequence Samantha would have suffered is that if she had to start collecting Employment Insurance 3 months before her due date she would only be entitled to 9 months of Employment Insurance after the due date. The early application eats into the maximum. That is an injustice that successive Federal governments have failed to address. I would argue that Samantha should have been eligible for her entire maternity leave benefits plus the benefits between her termination date and due date. If we really want to support women in child rearing that’s what we would do.
Arguably, the judge’s decision in Samantha’s case made the employer the insurer to supplement injustices in the Employment Insurance system. Before reading this case I would have told a client like Samantha that her pregnancy status might add an extra month to her entitlement. That advice will now have to change.
