It is hard to imagine a time where a steady income is more important than when you are bringing a child into the world. Being fired is already a stressful experience. Being fired while pregnant makes everything much, much worse.
Thankfully, it appears Ontario Courts are aware of this. In a recent decision, discussed below, the Ontario Superior Court of Justice found that pregnancy may lengthen the notice period an employee is entitled to under law.
Nahum v. Honeycomb Hospitality Inc.: The Facts
The employee, Ms. Nahum, was five months pregnant when she was fired without cause. She was only employed for four and a half months but was in a position that paid $80,000 annually, plus benefits. The Court found this position to be mid-level management. She was 28 years old at the time of her termination. Following her termination she actively, though unsuccessfully, sought alternative employment.
Ms. Nahum wanted 8 months’ notice. The employee considered her pregnancy as a factor in reaching this amount. The employer, on the other hand, felt 2 months was more than sufficient.
Reasonable Notice Factors – Should Pregnancy Be Included?
The factors that inform the reasonable notice determination are well known and derive from the 1960 decision Bardal v Globe & Mail. These factors include: the character of the employment, the length of service of the employee, the age of the employee and the availability of similar employment. Notably, both the length of Ms. Nahum’s service as well as her relatively young age would ordinarily suggest that a short notice period is appropriate.
The “most contentious issue” in this case, according to Justice Akbarali, was whether or not Ms. Nahum’s pregnancy should be considered in determining the reasonable notice period. It was not contemplated in the leading decision Bardal. Yet, as it turns out, this was not the first time this issue has been litigated. It was previously addressed in the decision Harris v. Yorkville Sound Ltd., where it was decided that an employee’s pregnancy placed a limitation on the availability of alternative work and therefore justified a longer notice period. In that case, an additional two months were added to the notice period to account for the pregnancy.
In Nahum v Honeycomb Hospitality Inc., Justice Akbarali noted the reality of the fact that employers, when looking to hire, often prefer to hire those who can start immediately. Unsurprisingly, the idea of hiring someone who is pregnant and who will inevitably require time off in the near future is unattractive. Pregnancy does indeed create difficulties for those searching for employment. Ideally, the reasonable notice period should account for that. According to Justice Akbarali, “there is no principled reason why […] their pregnancy at the date of dismissal should not factor into the reasonable notice period when their pregnancy is reasonably likely to negatively impact their ability to find alternative employment.”
The Ontario Superior Court has clearly accepted that pregnancy, as an impediment to finding alternative employment, is a factor to consider and can indeed extend the reasonable notice period. However, it is important to remember that pregnancy is just one factor among many. It alone is not determinative. The appropriate reasonable notice will depend on the facts viewed holistically. Yet employers should nevertheless be aware that terminating a pregnant employee may lead to more payment than they initially expected.