Terminated employees have a duty to mitigate their damages. However, this may be challenging for an employee in certain circumstances, including during a pregnancy. A recent Ontario decision reveals that employers may be responsible for longer notice periods and increased wrongful dismissal damages for employees terminated during their pregnancy.
The employee was hired to work for the employer as their Director of People and Culture on an indefinite basis. After approximately four and a half months of employment, the employee was terminated without cause. At the time of her termination, she was 28 years old and about five months pregnant.
The employee sued. The employee was unemployed at the time the court heard the case. She had searched for comparable employment both before and after her child was born, apart from a two-month period immediately after the birth of her child. The parties agreed that the employee was entitled to reasonable notice of termination at common law (or pay in lieu) because the termination provisions in her employment agreement were not enforceable. The employee asked the court for eight months’ notice. The employer argued that a two-month notice period was generous.
What did the Court Say?
The court said the appropriate reasonable notice period was five months.
The court said the employee’s pregnancy must be considered in determining the reasonable notice period. The court said a person’s pregnancy will likely increase the time it takes them to find similar employment. This is because most hiring employers are seeking to fill an immediate need at their organization, and a pregnant candidate may require a leave in the near future. However, the court clarified that pregnancy should not automatically lengthen the notice period in every case.
In the current case, the employee was five months pregnant when the employer terminated her employment. In the court’s view, it would be unreasonable to expect the employee to obtain new employment during the two month notice period the employer argued was “generous” given how far along she was in of her pregnancy and the competitive job market in which she was searching for work. The court did clarify that, since the employee’s termination pre-dated the COVID-19 pandemic, it was not considered in its analysis considering the pandemic was not anticipated at the time of her termination.
The court awarded a notice period of five months.
Take Away for Employers
Pregnancy is a factor considered by a court when determining the appropriate notice period. It will not always result in a longer notice period. But because pregnancy – particular one that is far along – may make it more difficult to find comparable employment, it may result in longer notice periods in certain cases.
Employers should also be mindful of other legal issues that arise when terminating an employee who is pregnant. If an employee’s termination is at all related to their pregnancy, it will likely breach human rights legislation and expose the employer to additional risks. Similarly, if a termination decision is communicated after a pregnant employee announces they are taking a maternity leave, an employer may face a reprisal claim under employment standards legislation.
If you have questions about termination obligations, please contact the author or your regular Fasken lawyer.