Canadian HR Reporter

www.hrreporter.com 33 C O L U M N S E M P L O Y M E N T L AW EXTRA TERMINATION NOTICE FOR PREGNANT WORKER Ontario worker who was five months pregnant at the time of her firing is entitled to five months' notice despite being with the company for only four-and-a-half months, the Ontario Superior Court of Justice has ruled. Honeycomb Hospitality is a hospitality and entertainment company that owns and operates several restaurants and bars in Ontario, most of which are located in Toronto. In the summer of 2019, Honeycomb hired Sarah Nahum, 30, to be the company's director of people and culture, a position that involved responsibility for the company's HR department and running payroll for Honeycomb's 350 employees. Nahum was a native of the U.S. and had never worked in Canada before she applied for the position. Honeycomb intended for Nahum to build up an HR structure in the company's central office and take on recruit- ment responsibilities. Most of Honeycomb's employees worked at individual venues, and Nahum was one of 12 who worked in the central office. Five of them held director titles; Nahum was the lowest paid of those five. Nahum started working on June 17 with a three-month probation. She successfully completed her probationary period, but after an additional month and a half, Honeycomb terminated her employment without cause, effective Oct. 31. However, Nahum was five months pregnant at the time of her termination. She started looking for work and applied for 36 jobs, but she was unsuccessful in finding alternate employment by the time her baby was born in February 2020. About two months after the birth of her baby, Nahum began looking for work again and applied for more than 75 positions without any success. Nahum filed an action claiming that she was entitled to eight months' notice of termination because she was part of Honeycomb's manage- ment team with important responsibilities. She also said that her pregnancy was an obstacle to finding new employment and should be a factor in lengthening her reasonable notice period. Honeycomb argued that Nahum shouldn't be entitled to more than two months' notice. In addition to her short service, the company said she wasn't part of the management team. It also argued that concluding that pregnant women were less likely to become employed implied that prospective employers would violate human rights legislation in their hiring deci- sions, and awarding more notice for that would hold the dismissing employer "responsible for the wrongs of others." The court accepted that Nahum didn't have any significant decision-making responsibil- ities, noting that "much of her work was admin- istrative in nature." However, it found that Honeycomb expected her to develop a more sophisticated HR department when she joined the company, which required leadership and responsibility. As a result, Nahum's position should be considered "mid-level management," said the court. After considering the traditional Bardal factors, the court turned to Nahum's argument for extra consideration for her pregnancy. It referred to previous Ontario decisions that found a dismissed employee's pregnancy "did not enhance her immediate employability" and warranted additional notice. The court noted that "the purpose of reason- able notice is to give the employee an oppor- tunity to find other employment" and referred to an Ontario Divisional Court decision — Ivens v. Automodular Assemblies Inc., [2002] O.J. No. 3129 — that found complications from preg- nancy were a "Bardal-type factor" that should be considered in determining reasonable notice. The court disagreed with Honeycomb's argu- ment in assuming prospective employers would violate human rights legislation. Many employers legitimately need employees who can fill open positions immediately, so the disadvan- tage to pregnant women doesn't necessarily stem from discrimination, said the court. "The prospect of a new employee who will shortly require a lengthy leave will be unappealing to many employers and may not meet bona fide needs of their organization." The court determined that it was unreasonable to expect Nahum to obtain new employment in the two-month notice period proposed by Honeycomb, as she was five months pregnant at the time of her dismissal. Honeycomb was ordered to pay Nahum the equivalent of five months' salary and benefits. See Nahum v. Honeycomb Hospitality Inc., 2021 ONSC 1455. CHRR The length of an employee's reasonable notice of dismissal is determined by multiple factors. Jeffrey R. Smith discusses an Ontario court decision that considers one that is not often in play but can extend the notice entitlement: pregnancy CHILD-CARE EFFECTS ON MOTHERS' JOBS Jeffrey Smith Editor of Canadian Employment Law Today Source: Pew Research Centre Many employers legitimately need employees who can fill their positions immediately, so the disadvantage to pregnant women doesn't necessarily stem from discrimination. AN 27% Quit their job (10% of fathers) 13% Turned down a promotion (10% of fathers) 42% Reduced work hours (28% of fathers) 39% Took significant time off (24% of fathers)

• Cover