Pregnant employee loses baby, job

Employer claimed dismissal was for performance issues and absenteeism but pregnancy was a factor in decision
By Jeffrey R. Smith
|Canadian Employment Law Today|Last Updated: 07/05/2010

An Ontario company who fired an employee for being absent after a miscarriage discriminated against her because of her pregnancy, the Ontario Human Rights Tribunal has found.

Sylvia Osvald was hired as a receptionist for Videocomm Technologies, a security surveillance company in Oakville, ON, on Nov. 13, 2006. She signed an employment contract that confirmed several company policies dealing with issues such as illness and discipline.

Videocomm had a policy of progressive discipline that included verbal and written warnings, followed by suspension and ultimately termination. It also specified serious misconduct could lead to immediate dismissal. The attendance policy required a doctor’s note from employees who were absent for three consecutive days and allowed five paid sick days a year, which couldn’t be banked.

Not long after starting her job at Videocomm, Osvald announced she was pregnant. She frequently had to take time off during the day to go to doctor’s appointments and in most cases she had the absences approved by her supervisor and she made up the time by working through her lunch hours. Her supervisor told her she didn’t need a note for these absences.

Miscarriage at work

On Friday, Jan. 19, 2007, Osvald began having severe pain at work. She went to the bathroom and suffered a miscarriage. When she told her supervisor, the supervisor was understanding and offered to take her to the hospital. However, Osvald opted to have her partner pick her up and take her. The supervisor told her rest over the weekend and she would see Osvald next week.

Osvald returned to work the next Monday but was still in pain. After work she went to the hospital for an ultrasound, but was told she would have to come in the following morning. She informed Videocomm of her appointment.

Her ultrasound on Tuesday, Jan. 23, 2007, revealed she needed to have immediate surgery. Osvald called Videocomm to advise it of her situation. She ended up having the surgery at 3 a.m. on Jan. 24 and spent the day recovering. She didn’t call Videocomm to update her status, though she believed her supervisor had told her to take the day off if she had surgery. However, Videocomm considered this an unreported absence.

Osvald returned to work the next day, Jan. 25, and was taken into a boardroom, where her supervisor told her “your services are no longer required.” She was then escorted out the back door.

Poor performance, absenteeism reasons for dismissal: Employer

Videocomm said it decided to terminate Osvald’s employment because of excessive absenteeism and poor job performance. The company said she was often late because of sleeping in and she had been absent nine times in the two months she worked there. She was also frequently emotional at work, the company said, which affected her ability to concentrate and learn her tasks and also distracted her co-workers. It also said she had been spoken to about wearing jeans to the office, but still did, and she spent too much time on the Internet. It said Osvald had been warned her absences could lead to termination but Osvald denied this had been discussed.

Osvald filed a human rights complaint, claiming she had been fired for factors related to her pregnancy and miscarriage.

The adjudicator found Osvald sometimes exhibited behavour that disrupted the office and affected her ability to concentrate and perform her job duties effectively. Reports from other employees confirmed she often was emotional at work and had difficulty learning some of her duties. The adjudicator also found the supervisors believed they were terminating her for nondiscriminatory reasons, such as performance issues. However, the absenteeism was related to her medical issues and her pregnancy, said the adjudicator.

Because the adjudicator found factors relating to Osvald’s pregnancy played a role in her termination, there was discrimination under the Human Rights Code. The adjudicator also found Videocomm was under the mistaken belief that it could fire her without justification because she was still a probationary employee.

The adjudicator found the timing of Osvald’s termination, coming right after her miscarriage and operation, negatively affected her ability to find work right away due to psychological issues. As a result, Videocomm was ordered to pay Osvald two months’ salary plus $2,500 for retraining and outpatient counselling. Videocomm was also ordered to pay Osvald $10,000 for injury to her dignity, feelings and self-respect she experienced because of the discrimination.

“(Videocomm) asserted that (Osvald) was terminated during her three month probationary period for performance related issues,” said the adjudicator. “However, when the reasons for the termination were examined, the evidence established that factors related to (Osvald’s) pregnancy and subsequent miscarriage played a part in the decision to terminate her employment.” See Osvald v. Videocomm Technologies Inc., 2010 CarswellOnt 2643 (Ont. Human Rights Trib.).

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