Pregnant worker’s contract not renewed

Employer claimed five-months-pregnant employee couldn't fulfill one-year contract and had no intention to hire her full-time
|Canadian Employment Law Today|Last Updated: 06/25/2014

This instalment of You Make the Call involves a worker who claimed discrimination when her contract wasn’t renewed after announcing her pregnancy.

Tammy Quilty-MacAskill was a caseworker in a restorative justice program for youth and victims of crime run by the Community Justice Society (CJS), a not-for-profit agency in Halifax. She worked under two consecutive one-year contracts beginning in April 2009.

In June 2009, Quilty-MacAskill received a disciplinary warning stemming from an incident in which she told a teenaged client’s partner the results of the client’s pregnancy test. When the partner began berating her, she called him an idiot and hung up. CJS considered this an unsafe action that could have put the client at risk and was not how a caseworker should act. CJS also felt that a caseworker attending such an appointment with a client was outside normal duties.

In October 2009 Quilty-MacAskill was appraised and received average to excellent performance ratings, with some areas requiring improvement, including her need to recognize the limits of the restorative justice process and keep personal feelings from interfering with her work. Her contract was renewed for another one-year term in 2010. This second contract stated that the term would be used to determine her suitability for full-time employment.

In July 2010, two other caseworkers complained that a client of Quilty-Mac-Askill in a shoplift program meeting disclosed information about the extent of her shoplifting. Quilty-MacAskill had not been aware of the information and told the client in front of everyone, “we will chat about this later.”

Quilty-MacAskill received a second warning notice regarding her comment.

In August, Quilty-MacAskill was running an intake meeting to which a youth showed up without an adult support person and didn’t take responsibility for his offence. Both were requirements for participation, but Quilty-MacAskill proceeded anyway. Later, she scheduled a restorative justice session with the youth on a day she knew the required police officer wasn’t scheduled to work, increasing overtime costs for the police. CJS suspended her for two days for poorly managing the file. Quilty-MacAskill alluded to “mitigating circumstances” — such as a recent miscarriage — that contributed to her misjudgment.

Quilty-MacAskill was put on a two-month probation period. She had no further problems and received a letter with positive comments from her supervisor, so she assumed she would continue to have a job at the end of her contract.

In February 2011, Quilty-MacAskill told CJS she was pregnant and management responded positively. Another caseworker had been off work likely wouldn’t be back, resulting in CJS being short-staffed. Quilty-MacAskill thought she would be rolled into or apply for that position.

Quilty-MacAskill met with the executive director on March 1, 2011, to discuss her contract. She said she planned on applying for the open full-time position, with a three- to four-month maternity leave after she gave birth.

Quilty-MacAskill testified the director said that it probably wouldn’t work and a year-long contract wouldn’t make sense since Quilty-MacAskill wouldn’t be there for five months of it.

The director testified CJS did not intend to keep Quilty-MacAskill after the expiry of her contract because of her suspension and probation, which she felt put CJS at risk.

A job was posted a week later to replace the caseworker who wasn’t returning. Quilty-MacAskill resigned on April 8, 2011, and made a complaint of sex discrimination because of her pregnancy.

You Make the Call

Did the employer fail to renew the contract for legitimate performance reasons?
OR
Did the employer discriminate against Quilty-MacAskill?

If you said CJS’s failure to renew the contract was for legitimate reasons, you’re right. The Nova Scotia Human Rights Commission found that although Quilty-MacAskill completed her probation period without any problems, the entire first year of employment — including her disciplinary issues — was a suitable period of consideration for her suitability to a position with such high standards and responsibility. Quilty-MacAskill received a second year to prove herself, but this resulted in a suspension and probation period due to serious failures to follow protocol.

The commission pointed out that Quilty-MacAskill must have suspected it wasn’t a guarantee she would be kept on, since she didn’t hear anything definite. Also, she didn’t seem concerned about any negative reaction to her pregnancy when she announced it. She only brought it up when she told the director she intended to apply for the vacant caseworker position, said the commission.

The contract expired before Quilty-MacAskill’s due date but there were no discussions for maternity leave, and CJS’s granting of additional work up to her due date gave her a benefit, rather than adverse treatment, said the commission.

“(CJS’s) refusal to consider (Quilty-MacAskill) for employment beyond the five-month extension she requested had an adverse affect upon (Quilty-MacAskill). However, the adverse effect occurred due to non-discriminatory reasons,” said the commission. “The adverse treatment arose solely due to performance issues and personality conflict between (Quilty-MacAskill) and (the director).”

See Quilty-MacAskill and Community Justice Society, Re, 2013 CarswellNS 1085 (N.S. Human Rights Comm.).