Telling an employee her contract won't be renewed because she can't fulfill duties
Question: Can an employer dismiss an employee who has become pregnant after she was hired for a personal service contract? For example, upon learning the employee is pregnant and will be leaving the workplace, can the employer say her contract will not be renewed because she is unable to fulfill the duties of the contract?
Answer: An employer cannot dismiss an employee who has become pregnant after she was hired for a two-year personal service contract. Human rights and employment standards legislation protect the employment of pregnant employees. However, the extent of the protection is balanced by the limits of an employer’s duty to accommodate to the point of undue hardship. If the employee is unable to perform the tasks of her employment, as part of accommodation an employer may be expected to modify duties or allow her to work reduced hours but any one of those accommodations may constitute undue hardship. If undue hardship is present, the employer can bring the employment to an end.
Great care has to be exercised in dismissing an employee because she is pregnant. For example, in Redden v. Saberi, the employer, Navid Saberi, dismissed his pregnant employee weeks after she revealed she was pregnant. Terri Redden was a receptionist at a busy real estate office, working upwards of 60 hours each week. Saberi claimed she was dismissed because she was not willing to be flexible or available to work overtime and therefore no longer suitable for the position. The Nova Scotia Board of Inquiry held that Redden was terminated because she became pregnant. The employer made no attempt to relax the demands or accommodate the employee and the board found this constituted sex discrimination.
Similarly, pregnant employees have a number of statutory rights upon return from pregnancy. Ontario’s Employment Standards Act, 2000, specifies such rights including:
•The right to reinstatement.
•The right to be free from penalty.
•The right to earn credits for length of employment, service and seniority.
An employee has a right to reinstatement to either the same job the employee had before the leave began or a comparable job if the employee’s former job no longer exists. In either scenario, the employee is entitled to earn the same wage she was earning before taking the leave. In addition, if the wages increased while the employee was on leave or would have gone up had she not been on leave, the employee is entitled to the higher wage rate upon her return.
The act protects the employee’s ability to continue to earn service credits and to maintain a continuous length of employment without an interruption for the maternity leave. In addition, the section protects the employee’s ability to continue to accumulate seniority.
Finally, employers cannot retaliate against employees because of their leave.
With respect to whether an employer, upon learning the employee is pregnant and will be leaving the workforce, tells her once she leaves, her contract will not be renewed because she is unable to fulfill the duties of the contract, considerable care still has to be exercised. If the contract is truly a two year fixed term contract, there should be no obligation to renew it. The employer may decide freely to not offer a further contract to a particular employee, but the employer cannot fail to renew it on the basis of the existence of a protected characteristic unless a right to renewal would give rise to undue hardship.
For more information see:
•Redden v. Saberi, 1999 CarswellNS 486 (N.S. Bd. of Inquiry).
Brian Johnston is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or [email protected].
Answer: An employer cannot dismiss an employee who has become pregnant after she was hired for a two-year personal service contract. Human rights and employment standards legislation protect the employment of pregnant employees. However, the extent of the protection is balanced by the limits of an employer’s duty to accommodate to the point of undue hardship. If the employee is unable to perform the tasks of her employment, as part of accommodation an employer may be expected to modify duties or allow her to work reduced hours but any one of those accommodations may constitute undue hardship. If undue hardship is present, the employer can bring the employment to an end.
Great care has to be exercised in dismissing an employee because she is pregnant. For example, in Redden v. Saberi, the employer, Navid Saberi, dismissed his pregnant employee weeks after she revealed she was pregnant. Terri Redden was a receptionist at a busy real estate office, working upwards of 60 hours each week. Saberi claimed she was dismissed because she was not willing to be flexible or available to work overtime and therefore no longer suitable for the position. The Nova Scotia Board of Inquiry held that Redden was terminated because she became pregnant. The employer made no attempt to relax the demands or accommodate the employee and the board found this constituted sex discrimination.
Similarly, pregnant employees have a number of statutory rights upon return from pregnancy. Ontario’s Employment Standards Act, 2000, specifies such rights including:
•The right to reinstatement.
•The right to be free from penalty.
•The right to earn credits for length of employment, service and seniority.
An employee has a right to reinstatement to either the same job the employee had before the leave began or a comparable job if the employee’s former job no longer exists. In either scenario, the employee is entitled to earn the same wage she was earning before taking the leave. In addition, if the wages increased while the employee was on leave or would have gone up had she not been on leave, the employee is entitled to the higher wage rate upon her return.
The act protects the employee’s ability to continue to earn service credits and to maintain a continuous length of employment without an interruption for the maternity leave. In addition, the section protects the employee’s ability to continue to accumulate seniority.
Finally, employers cannot retaliate against employees because of their leave.
With respect to whether an employer, upon learning the employee is pregnant and will be leaving the workforce, tells her once she leaves, her contract will not be renewed because she is unable to fulfill the duties of the contract, considerable care still has to be exercised. If the contract is truly a two year fixed term contract, there should be no obligation to renew it. The employer may decide freely to not offer a further contract to a particular employee, but the employer cannot fail to renew it on the basis of the existence of a protected characteristic unless a right to renewal would give rise to undue hardship.
For more information see:
•Redden v. Saberi, 1999 CarswellNS 486 (N.S. Bd. of Inquiry).
Brian Johnston is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or [email protected].
