Fired because of pregnancy or troublemaking?
Human rights can be a tricky area for employers when terminating employees for cause, as a Saskatchewan case has demonstrated.
Teresa Hitchings alienated several of her co-workers during her 18-month tenure at P.S.S. Professional Salon Services Inc. (P.S.S.) in Saskatoon. After hearing complaints about her, her boss was ready to discipline her. However, since she was about to go on maternity leave, he decided against it.
While Hitchings was on leave, her boss heard about additional misconduct and it became clear the workplace was more pleasant without her. When Hitchings told her employer she was ready to return to work, P.S.S. fired her instead.
Though P.S.S. claimed she was fired because of her misconduct, a human rights tribunal found the fact she was on maternity leave contributed to her termination, which constituted discrimination based on a prohibited ground in the Human Rights Code. Though this decision was overturned on appeal, a dissenting appeal judge found a prohibited ground didn’t have to be the main reason for dismissal, just a factor to be considered discrimination.
The difference of opinions between judicial levels and even within the Court of Appeal demonstrate how there can be a thin line between just cause and discrimination and where discrimination is alleged, the onus is on employers to prove there is none.
The Saskatchewan Court of Appeal has overturned a human rights tribunal’s ruling that a Saskatchewan company fired an employee because of her pregnancy.
Teresa Hitchings of Saskatoon was hired on Feb. 15, 2000, to work at the order desk of P.S.S. Professional Salon Services Inc., a wholesaler of hair care products. The company indicated she did her job fairly well, but over a period of time a sense of “negativity” developed in the office. Her manager was unsure of the cause but came to suspect Hitchings was the source.
Hitchings said she got along well with her co-workers and had been told by her supervisors she was doing good work. She testified she didn’t think one co-worker in particular was doing a good job and also complained to her supervisor about the heat in the office and the state of her desk, though nothing was done.
The owner of P.S.S., Donald Campbell, was aware a negative atmosphere had developed in the workplace but was also initially uncertain of the source. He became suspicious that Hitchings was involved when her co-worker came to him and the supervisor in tears twice to complain about the stress of working with Hitchings. The supervisor said there was so much tension in the office she was having stomach aches and found it hard to come to work some days because of Hitchings’ complaining and negative comments. Campbell testified to the human rights tribunal that he didn’t bring the matter up with Hitchings at the time because it was shortly before she began maternity leave and he admitted had she not been going on leave, at this point Hitchings would have been just subject to discipline.
On Aug. 24, 2001, Hitchings went on maternity leave. The staff of P.S.S. consisted of mostly women and maternity leave was fairly common. A replacement was hired but she, too, soon went on maternity leave. A third employee was hired to work at the order desk as a temporary worker pending Hitchings’ return. When one of the permanent employees left the company, the first replacement for Hitchings who had gone on maternity leave was assured of a permanent position when she came back.
While Hitchings was on leave, Campbell was told by other employees that she had often tried to undermine him by speaking about him in a derogatory manner and had insulted other employees as well. He also learned Hitchings had told another employee not to bring up any workplace issues with him or she’d be fired.
Hitchings had told some of the other employees she might not return from her maternity leave but said it was possible. On July 19, 2002, about one month before her leave expired, she informed P.S.S. she intended to return to work. The supervisor told Campbell she didn’t want Hitchings back “because she was trouble” and another employee said she’d quit if Hitchings returned. A warehouse employee also informed him that before she went on leave, she’d tried to organize the employees into leaving work an hour early at 4 p.m. because the supervisor was allowed to do so.
Campbell testified he had intended to bring Hitchings back and let the temporary replacement go, but things changed after the other employees told him about her actions.
He met with Hitchings on July 29, 2002, and informed her other employees had complained about her “being a nuisance and causing problems.” He told her P.S.S. was not bringing her back after her maternity leave and she would receive two weeks’ pay in lieu of notice.
Hitchings was surprised since she hadn’t been told there were any problems. She filed a human rights complaint, saying she was fired because she had gotten pregnant and was on maternity leave, which was a protected ground under
The Saskatchewan Human Rights Code
, though she acknowledged to the human rights commission she may have been dismissed because she was seen to be a troublemaker. She also stated management felt she was a threat because she knew a lot about employment law and human rights from previous jobs.
The tribunal noted Campbell admitted had Hitching not been about to go on maternity leave, he would have disciplined rather than terminated her.
“(Hitchings) had performed her job well, no disciplinary action had been taken against her and no warnings about her conduct had been given to her prior to her having taken maternity leave,” the tribunal said. “It does not seem credible that Mr. Campbell, satisfied with (Hitchings’) work, and acting on the bases he did, would have dismissed her had she been at work rather than on maternity leave, not without first investigating the allegations.”
Determining she was terminated because she was on maternity leave, which was a violation of her human rights, the tribunal awarded Hitchings $4,384.73 for loss of income and injury to her feelings.
The Saskatchewan Court of Queen’s Bench denied the employer’s appeal, ruling P.S.S. did have reason to discipline Hitchings but it failed to show her pregnancy and maternity leave weren’t factors in her dismissal.
P.S.S. took the matter to the Saskatchewan Court of Appeal, arguing the tribunal and court didn’t take into consideration what it had learned about Hitchings’ conduct after she went on maternity leave. Though Campbell testified he would have just disciplined her if she hadn’t been going on leave for her conduct at that point, more examples of her behaviour came to his attention in the year during her leave which changed his opinion. “It was at this juncture that Mr. Campbell, possessed of this additional information, decided to dismiss (Hitchings),” said Justice Cameron of the Court of Appeal.
The court pointed out Hitchings herself had made a statement to the tribunal saying she was likely dismissed because she was a troublemaker, she “rocked the boat” and posed a threat to management.
“She was not suggesting, she acknowledged, that she was dismissed because she had taken maternity leave,” Justice Cameron said. “The import of her testimony is she was dismissed because she was a troublemaker, not because she had become pregnant and taken maternity leave.”
The court found the tribunal relied heavily on the fact the office was fully staffed when Hitchings was dismissed, as evidence she was let go because of her pregnancy and maternity leave. However, both Campbell and the supervisor testified the order desk replacement had been hired on a temporary basis, keeping a position open for Hitchings. P.S.S. had a formal policy that required employees returning from maternity leave to notify the company in advance of the date of their expected return in order to give notice to temporary employees of their termination.
The court set aside the tribunal’s decision, allowing the appeal to go forward. One of the judges, Justice Lane, however, dissented, finding that while Hitchings’ pregnancy and maternity leave may not have been the primary motivation for her termination given what P.S.S. found out about her conduct, it only needed to be a factor to be contrary to the code.
“Had (Hitchings) been working at (P.S.S.) offices at the time the allegations were made, and the concerns about (her) work habits brought to Campbell’s attention, he would not have dismissed her,” Lane said. “It is clear on the evidence that but for (her) pregnancy she would not have been dismissed.
For more information see:
Hitchings v. P.S.S. Professional Salon Services Inc.,
2007 CarswellSask 743 (Sask. C.A.).
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