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,…
Holly Graham was a mobile patrol officer and had been working for her Employer, Response Security, for 2 years when she became pregnant. Within five minutes of notifying her Employer of her pregnancy, she was told she would immediately be taken off the work schedule and should apply for short-term disability benefits. Ms. Graham did not request accommodation and did not consider herself under disability. Ms. Graham was told by HRSDC that she was not eligible for sick benefits under the Employment Insurance Act (it appears the Company did not have short term disability benefits so the only option was to apply for sick benefits through HRSDC under the Employment Insurance Act). After learning that she did not qualify for sickness benefits and that not working would adversely impact her maternity leave benefits, she found part-time retail sales work and an administrative position with another security company. Ms. Graham’s Employer, upon learning that she was employed with a business competitor, terminated her employment.
The Employer argued that Ms. Graham was removed from the schedule in accordance with Company policy as a result of health and safety issues and the potential danger to her, her unborn child and co-workers. A copy of the Company policy was never provided to Ms. Graham or the Human Rights Tribunal of Ontario. The Human Rights Tribunal of Ontario found that the Company’s conclusion that a pregnant woman in a patrol car or in the field was a health and safety issue was not based on “empirical data, or fact” and stated the following:
“The decision made by the respondents to remove the applicant from the schedule within minutes of being informed that she was in the early stages of a pregnancy was arbitrary and based on stereotypes and assumptions that are in my view, unsupported by fact.”
The termination of Ms. Graham’s employment after she attempted to mitigate her losses was considered another step in a chain of decisions made by the Employer that negatively impacted Ms. Graham.
Ms. Graham’s pregnancy was found to be a factor in her termination thereby constituting discrimination on the basis of sex (pregnancy) contrary to the Ontario Human Rights Code.
In view of the impact of the above, at a time in her life when she faced pregnancy, delivery and parenthood as a single person with no other source of income or support, Ms. Graham was awarded $20,000 in damages for injury to her dignity, feelings and self-respect, plus a further amount for lost wages to be assessed upon Ms. Graham providing a total of her gross earnings and calculation of what she would have earned.