Employer’s Conduct Constitutes a Repudiation of the Employment Contract thereby Disentitling it from Relying on the Without Cause Termination Provision
In a recent decision of the Ontario Superior Court of Justice (May 2021), Humphrey v. Mene,…
The Ontario Human Rights Tribunal awarded over $19,000 for lost wages and compensation for injury to dignity, feelings and self-respect to an employee who was dismissed from her job during her 8th month of pregnancy. The Tribunal found that the employer breached the Ontario Human Rights Code on the grounds of sex discrimination, which includes pregnancy.
Ms. Peart commenced employment with Distinct HealthCare Services Inc. (“the Company”) in September, 2009. In February, 2010, Ms. Peart was given a performance review and was recognized as being a “very good employee” and subsequently given a raise. In March, 2010, Ms. Peart became aware that she was pregnant and shortly thereafter announced the news to her supervisor, Ms. Isaac and to her coworkers. In June of 2010, Ms. Peart began noticing that her supervisor’s attitude was changing towards her. He had become overbearing. During the following months, Ms. Peart was criticized by Ms. Isaac for looking tired, appearing not to want to work anymore, looking big and dressing unprofessionally. Ms. Isaac offered to purchase maternity wear for Ms. Peart and Ms. Peart felt her pregnancy and her appearance had become an issue with Ms. Issac.
An additional source of friction between the two was Ms. Peart’s need for accommodation to attend pregnancy related medical appointments. Ms. Peart maintained that she, at all times, complied with the company policy regarding such requests, but still experienced direct hostility from Ms. Isaac.
In October, 2010, after a request for accommodation for one such appointment, the culminating events of the past few months came to a head and a meeting was held. The concern regarding her attire was again mentioned as well as additional comments that she was “looking big”. A suggestion was made that the applicant should consider taking her maternity leave early and that she didn’t seem interested in working anymore. On the morning of the 26th of October, Ms. Peart telephoned the office after a medical appointment to inform her supervisor that she would not be returning to work that day. She was unable to get through but left a message. Later in the afternoon she received a call from Ms. Isaac with a demand that she return the office keys. That evening she again received a call from Ms. Isaac informing her that her maternity leave papers were being processed a month early and that she was not to come back to the office. Ms. Peart did not return to work.
Ms. Peart gave birth a month later but experienced depression and anxiety about not having a job to return to and her ability to provide for her child. Testimony at the hearing by Ms. Peart’s husband relayed what effect the loss of employment had made on his wife and her difficulty coping. After hearing the evidence, the Tribunal found that Ms. Peart’s employment had been terminated contrary to the Ontario Human Rights Code, at least in part, for discriminatory reasons relating to her pregnancy. The Tribunal awarded Ms. Peart $6,600 in lost wages, representing the amount lost due to the forced early maternity leave and for time unemployed post-leave. The Tribunal also awarded the sum of $12,500 as compensation for the anxiety and depression suffered by Ms. Peart at a time when she was most vulnerable as a pregnant woman and a new mother.
Peart v. Distinct HealthCare Services Inc., 2013 HRTO 305 (CanLII ), Human Rights Code, R.S.O. 1990, CHAPTER H.19