Office troublemaker fired upon return from maternity leave

Employer said she was terminated for causing problems in the office but she questioned whether her maternity leave was a factor
By Jeffrey R. Smith
|Canadian Employment Law Today

Fired because of pregnancy or troublemaking?

Human rights can be a tricky area for employers when terminating employees for cause, as a Saskatchewan case has demonstrated.

Teresa Hitchings alienated several of her co-workers during her 18-month tenure at P.S.S. Professional Salon Services Inc. (P.S.S.) in Saskatoon. After hearing complaints about her, her boss was ready to discipline her. However, since she was about to go on maternity leave, he decided against it.

While Hitchings was on leave, her boss heard about additional misconduct and it became clear the workplace was more pleasant without her. When Hitchings told her employer she was ready to return to work, P.S.S. fired her instead.

Though P.S.S. claimed she was fired because of her misconduct, a human rights tribunal found the fact she was on maternity leave contributed to her termination, which constituted discrimination based on a prohibited ground in the Human Rights Code. Though this decision was overturned on appeal, a dissenting appeal judge found a prohibited ground didn’t have to be the main reason for dismissal, just a factor to be considered discrimination.

The difference of opinions between judicial levels and even within the Court of Appeal demonstrate how there can be a thin line between just cause and discrimination and where discrimination is alleged, the onus is on employers to prove there is none.