Canadian Employment Law Today

No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2014 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today anad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 Pregnant worker's contract not renewed THIS INSTALMENT of You Make the Call involves a worker who claimed discrimina- tion when her contract wasn't renewed after announcing her pregnancy. Tammy Quilty-MacAskill was a case- worker in a restorative justice program for youth and victims of crime run by the Com- munity Justice Society (CJS), a not-for-prof- it 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 in- cident 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 excel- lent performance ratings, with some areas requiring improvement, including her need to recognize the limits of the restorative jus- tice process and keep personal feelings from interfering with her work. Her contract was renewed for another one-year term in 2010. is second contract stated that the term would be used to determine her suitability for full-time employment. In July 2010, two other caseworkers com- plained that a client of Quilty-Mac-Askill in a shoplift program meeting disclosed infor- mation 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 run- ning an intake meeting to which a youth showed up without an adult support person and didn't take responsibility for his off ence. 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 offi cer wasn't scheduled to work, increasing overtime costs for the police. CJS suspended her for two days for poorly managing the fi le. Quilty-MacAskill alluded to "mitigating circumstances" — such as a recent miscarriage — that contrib- uted 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 as- sumed 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-staff ed. 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 apply- ing for the open full-time position, with a three- to four-month maternity leave after she gave birth. Quilty-MacAskill testifi ed 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 fi ve months of it. e director testifi ed 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. IF YOU SAID CJS's failure to renew the contract was for legitimate reasons, you're right. e Nova Scotia Human Rights Commission found that although Quilty- MacAskill completed her probation period without any problems, the entire fi rst year of employment — including her disciplin- ary issues — was a suitable period of con- sideration 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 suspen- sion and probation period due to serious failures to follow protocol. e 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 defi nite. Also, she didn't seem concerned about any negative reac- tion 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. e contract expired before Quilty-Ma- cAskill's due date but there were no discus- sions for maternity leave, and CJS's granting of additional work up to her due date gave her a benefi t, rather than adverse treatment, said the commission. "(CJS's) refusal to consider (Quilty- MacAskill) for employment beyond the fi ve-month extension she requested had an adverse aff ect upon (Quilty-MacAskill). However, the adverse eff ect occurred due to non-discriminatory reasons," said the com- mission. " e adverse treatment arose sole- ly due to performance issues and personal- ity confl ict between (Quilty-MacAskill) and (the director)." See Quilty-MacAskill and Community Justice Society, Re, 2013 CarswellNS 1085 (N.S. Human Rights Comm.). YOU MAKE THE CALL Did the employer fail to renew the contract for legitimate performance reasons? OR Did the employer discriminate against Quilty-MacAskill?

• Cover