A recent BC Human Rights Tribunal case reminds employers to examine timing when ending working relationships with employees.
What do you do if your business restructuring plan involves terminating a pregnant employee? As a recent human rights decision demonstrates, proceed with caution!
On July 4, 2012, the BC Human Rights Tribunal ordered BNA Smart Payment Systems Ltd. to pay Pauline Kooner-Rilcof $3,125 for lost wages plus $8,000 for “Injury to Dignity, Feelings and Self-Respect” after it determined BNA’s decision to terminate Ms Kooner-Rilcof was motivated by news she was pregnant, not for legitimate business reasons.
In May 2009, BNA, an Ontario-based payment processing business, hired Kooner-Rilcof to help expand its operations in B.C. By the following year, she was promoted to the position of Vice President of Sales – Western Canada and was regularly assured that her position was secure. On Sept. 15, 2010, Kooner-Rilcof informed BNA that she was pregnant and would be taking maternity leave starting in December or January. The following day, the president of BNA informed Kooner-Rilcof that BNA had decided it needed to reduce its costs by closing its operations in B.C. and, as a result, her employment would be terminated that day.
The BC Human Rights Code prohibits discrimination in employment, and discrimination based on sex (which includes pregnancy) is one of the prohibited grounds. Once Kooner-Rilcoff demonstrated that she fell under a protected status and that she suffered adverse treatment through the loss of her job, BNA had to prove the decision to terminate was not motivated by her pregnancy. Unfortunately for BNA, its timing was terrible. Because BNA did not have any independent evidence to show they made the decision to fire Kooner-Rilcoff before she told them she was pregnant, oral evidence from BNA’s president and evidence that BNA’s Vancouver office lost money could not rebut the presumption the termination was discriminatory. BNA’s position was further weakened by the fact it revoked Kooner-Rilcof’s access to its systems within a day of giving her verbal notice of her termination, yet retained its commissioned sales representatives in Vancouver.
Whether or not BNA had already made the decision to terminate Kooner-Rilcof before they got the news of her pregnancy, this decision serves as a cautionary tale for employers. Employers can find themselves in the situation where an employee’s termination was planned but that employee informs them of a pregnancy or an illness or disability before the employer can terminate the relationship. Because the onus is on the employer to show any termination was not discriminatory, it’s difficult to implement the termination — especially if there are no other downsizing measures taking place, or if performance issues had not already been raised and documented.
It is because of potential human rights liability that employment lawyers ask clients the reason for the termination and whether or not the employee has a condition protected by the Human Rights Code.
Thus, if an employer is planning layoffs for whatever reason, it’s a good idea to first consider whether or not there are any Human Rights Code considerations applicable to the employees. If there are and if the employer does not have any objective evidence to show the termination was planned anyway, it will be very difficult for the employer to show the decision was made for legitimate business reasons. In those situations, employers may have to delay termination plans until the groundwork is better laid to justify the termination.
This blog is written by Nicole Byres of Clark Wilson LLP and made available by BCBusiness to provide general information on employment law, and is not a substitute for competent legal advice from a lawyer licensed to practice in your jurisdiction. Neither the reading of this blog nor the sending of unsolicited comments or emails creates a lawyer-client relationship with the writer or Clark Wilson LLP.