Pregnancy a factor in reasonable notice

Court rules pregnancy should be considered in determining reasonable notice, even it if has nothing to do with dismissal

In a recent decision the Ontario Divisional Court, on appeal, decided an employee’s pregnancy at the time of her dismissal is a “Bardal-type” factor (see below) that should be considered in determining the appropriate period of reasonable notice. This is the case even where the employee’s pregnancy is not the reason for her dismissal: Ivens v. Automodular Assemblies Inc., [2002] O.J. No. 3129 (Ont. Div. Ct.); rev’g [2000] O.J. No. 2579 (Ont. S.C.J.).

Ivens was hired as a labourer at Automodular’s plant. She was dismissed two months into a 90-day probationary period. Ivens was absent from work a total of eight days for health-related reasons during the probationary period. Shortly before her dismissal, she sought modified duties because of complications she was experiencing with her pregnancy.

Ivens claimed it would be more difficult for her to find alternative employment as compared to others who are dismissed from employment because she was pregnant at the time of her dismissal.

She said this factor should be taken into account in determining the appropriate length of notice Automodular was required to give her upon termination. In Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.) the court set out the types of factors that should be considered in determining reasonable notice.

These factors include the character of employment, length of service, age and availability of similar employment. This list of factors is not exhaustive and other factors may be taken into account in deciding the appropriate length of notice.

The trial judge took judicial notice of the fact pregnancy and its complications would make it more difficult for an employee to find alternative employment, similar to a physical disability making it more difficult for a disabled person to find employment: [2000] O.J. No. 2579 (Ont. S.C.J.) at para. 41.

Despite this the trial judge had three reasons for concluding this was not a factor that should be recognized.

First, an employer and an employee would not likely agree upon a lengthening of the reasonable notice period because of the employee's pregnancy if it were raised at the time the contract of employment was formed. Second, the recognition of this factor is not sound public policy because it would impose an unreasonable burden on employers and would discourage the hiring of persons who are pregnant or may have or develop disabilities. Third, it is wrong to make one employer compensate an employee who has been wrongfully dismissed for reasons other than pregnancy on the assumption another employer will discriminate against her because she is pregnant.

The trial judge was concerned the additional financial burden placed on an employer who decides to terminate a pregnant or disabled employee for reasons unrelated to her pregnancy or disability would create a new disincentive to hiring pregnant or disabled workers.

On appeal the Ontario Divisional Court concluded Ivens’ pregnancy complications were a Bardal-type factor that should have been considered in determining reasonable notice. The court noted the impact of Ivens’ pregnancy on her opportunity to find other employment should be a factor that is balanced along with the other Bardal factors.

But the court noted an employee's pregnancy should not be considered an overriding or dominant factor. The court increased the one-week’s salary awarded by the trial judge to eight weeks. The court did not make any comments regarding the parallel the trial judge made between pregnancy and disability.

As a result of this decision, employers should be aware the reasonable notice period for an employee who is pregnant at the time of dismissal may be longer than other employees given that the courts are now recognizing pregnancy may have an impact on an individual’s employability.

Based on the trial judge’s comments this may also hold true for those employees who are disabled.

Melanie Manning is an employment law lawyer with Rubin Manning & Thomlinson in Toronto. She can be reached at (416) 593-0306 or melanie@rmtlaw.ca.

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