Case In Point
Court Awards 5 Months’ Notice to Plaintiff with 4.5 Months’ Service and Who Was Pregnant at Time of Dismissal
Date: March 15, 2021
In a recent summary judgment decision, Nahum v. Honeycomb Hospitality Inc., the Ontario Superior Court awarded 5 months’ reasonable notice to a plaintiff with 4.5 months’ service. In doing so, the Court found that the fact that the plaintiff was 5 months pregnant at the time of termination was an “important factor” in assessing her reasonable notice period.
At the time of her without cause dismissal, the plaintiff was 28 years old and had been employed in an HR role as a Director of People and Culture for 4.5 months, receiving a salary of $80,000 per year. She was also approximately 5 months pregnant.
The parties agreed that the termination provisions in the plaintiff’s employment agreement were unenforceable, so the only issue on summary judgment was the duration of the common law reasonable notice period.
The Court characterized the plaintiff’s position as mid-level management and noted her very short service and young age. It also found that the plaintiff had taken significant steps to find work and earn an income following her dismissal (without success), with only a two-month break from her job search following the birth of her child.
The plaintiff argued that her pregnancy ought to be considered as a Bardal-type factor in determining the reasonable notice period. The Court reviewed the case law on this point, including a decision which held that in that case, evidence was not required to conclude that the employee’s pregnancy “did not enhance her immediate employability” (Harris v. Yorkville Sound Ltd).
In response, the defendant argued that evidence was required to conclude that pregnant people were less likely to find employment, and in any event such a conclusion implied that prospective employers would violate human rights legislation in their hiring decisions.
The Court disagreed, noting that it was possible for a prospective employer to have a bona fide need for an employee who would not require a lengthy leave shortly after commencing employment. Thus, recognizing that pregnancy was sometimes a disadvantage in the hiring process did not necessarily amount to recognition of a human rights violation. The Court continued that it was open to it to take judicial notice of the fact that pregnant people faced disadvantages when looking for work. The Court clarified, however, that a pregnancy should not function to automatically lengthen the notice period in every case, but only where pregnancy is reasonably likely to negatively impact a person’s ability to find alternative employment.
Ultimately, the Court awarded a reasonable notice period of 5 months, holding that the plaintiff’s pregnancy was an “important factor” in assessing her reasonable notice.
This decision is an important reminder to employers that the Bardal factors for determining the appropriate reasonable notice period are not exhaustive, and courts will continue to consider all of the relevant facts in determining the length of a notice period. Employers should be mindful of the potential impact of an employee’s pregnancy on the assessment of wrongful dismissal damages even in the absence of an alleged violation of human rights legislation.
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