Home care worker’s termination was from client’s comfort with replacement, not mat leave

Worker claimed she was let go because she took maternity leave but client liked replacement's level of care better

A home-care company and one of its clients did not discriminate against a home-care worker when the client preferred her maternity leave replacement to stay permanently, the Newfoundland and Labrador Court of Appeal has ruled.

Sharon McEvoy was chosen by Vincent Dalton to be his home-care worker in April 2000. Best of Care, a government-funded provider of home support services, was asked to hire McEvoy as its employee and take care of her employment issues. McEvoy performed light housekeeping, meal preparation and supervision of Dalton’s medications.

She got along well with him and there were no complaints about her performance.

On Aug. 5, 2001, McEvoy went on maternity leave and told Dalton’s family she would be able to return to work on Jan. 2, 2002. Best of Care hired a replacement worker, making it clear to the Dalton family the new worker was to fill in for McEvoy’s maternity leave.

During McEvoy’s maternity leave, Dalton had gallbladder surgery and his care demands increased. The replacement worker had to help him bathe, get dressed and go to the washroom. Dalton realized he felt more comfortable with the replacement worker’s assistance with these things than McEvoy’s, and he also found he preferred the new worker’s cooking.

At the request of Dalton’s family, McEvoy agreed to delay her return until March 1, 2002. On that day, however, Dalton informed Best of Care he wanted to keep the replacement worker as his permanent caregiver because she gave him a higher level of care. Best of Care agreed and offered McEvoy a new assignment that started in June or July but she found another job that started in May. She then filed a human rights complaint claiming her termination was based on her sex and pregnancy.

A Newfoundland and Labrador Human Rights Commission board of inquiry found McEvoy had been discriminated against and the fact she was female and took maternity leave was a factor in her termination. Best of Care and the Department of Health and Community Services, which funded her employment, were liable for $2,361.96 in lost wages and $3,000 in damages.

However, the Newfoundland and Labrador Trial Division court overturned the decision, finding McEvoy’s sex was not a factor in her termination. Instead, she was terminated because Dalton was more comfortable with the replacement worker and felt she was better suited to his home care needs. The maternity leave gave him the opportunity to discover that face, the court said, but the opportunity to find a more suitable employee did not mean he discriminated against McEvoy.

The Newfoundland and Labrador Court of Appeal agreed with the Trial Division, finding Dalton kept the replacement worker and terminated McEvoy for legitimate reasons that had nothing to do with her sex or the fact she took maternity leave.

“Mr. Dalton did not say he did not wish to employ Ms. McEvoy because she had been pregnant,” the Court of Appeal said. “He provided valid reasons, unconnected to any prohibited ground, and in taking his instructions, the employe did not discriminate against Ms. McEvoy.” See McEvoy v. Best Care Ltd., 2009 CarswellNfld 30 (N.L. C.A.).

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