Written on behalf of Peter McSherry
In a recent Ontario decision on reasonable notice, the court took judicial notice of the difficulties that may arise when a pregnant woman seeks new employment following dismissal.
Employee Terminated While Pregnant
The employee was hired by the employer, a hospitality and entertainment company, in 2019.
She began work for the employer on June 17, 2019, in a human resources position. She had signed an employment agreement, but the parties agreed that its termination provisions were not enforceable.
The employee was subject to a three-month probationary period. After about four-and-a-half months of employment, on October 31, 2019, she was terminated without cause.
At the time of her termination, the employee was 28 years old, and approximately five months pregnant. Her baby was born at the end of February 2020.
Apart from a two-month period immediately following the birth of her baby, the employee had consistently looked for work since being dismissed. She had applied to at least 36 positions after her dismissal and before her baby was born. Despite those efforts, the employee had not found alternate employment.
The employee argued that she was entitled to eight months’ notice, while the employer submitted that a two-month notice period was generous.
At issue before the court was the reasonable notice period, including the impact, if any, that the employee’s pregnancy has on its calculation.
Considerations in Calculating Reasonable Notice
Following principles established in case law, courts will generally consider the following factors in determining the reasonableness of notice: the character of the employment, the length of service, the employee’s age and the availability of similar employment, having regard to the experience, training, and qualification of the employee.
In this case, the employee sought to add pregnancy as a factor in the court’s determination, which the employer vigorously disputed.
Court Takes Judicial Notice of Pregnancy is Assessing Reasonable Notice Period
After reviewing previous case law on the matter, the court stated:
“Objectively, a person’s pregnancy is likely to increase the amount of time it will take them to find new employment in most cases, because most employers want to fill a need in their organization with someone who will be present to fill that need.
As I have noted, other courts have concluded, without evidence, that pregnancy creates difficulties for a person searching for employment….This past judicial consideration supports the conclusion that it is open to me to take judicial notice that pregnant people face additional challenges when looking for work. Judicial notice may be taken of this conclusion because it is a fact so notorious or generally accepted as not to be the subject of debate among reasonable persons.”
However, the court also stated that pregnancy should not function to automatically lengthen the notice period in every case. Instead, like all factors relevant to the notice period, the court stated that pregnancy is but one factor to be considered in the circumstances of the case.
As such, the court determined that, in the same way that a person’s advanced age will be a factor that tends to increase the notice period, so too should a dismissed employee’s pregnancy factor into the reasonable notice period when the pregnancy is reasonably likely to negatively impact the employee’s ability to find alternative employment.
As such, the court concluded:
“At the time of her dismissal, [the employee] was five months pregnant. In my view, it is unreasonable to expect she would be able to obtain new employment in the two month period proposed by [the employer] given the point in her pregnancy at which she was terminated, and the competitive job market in which she was seeking work.”
As a result, having weighed all the relevant factors together, including the employee’s pregnancy, the court concluded that a reasonable notice period of five months was appropriate.
If your employment has been terminated without reasonable notice or severance from your employer, you might have a claim for wrongful dismissal. Even if your employer claims that the notice or severance is reasonable, it pays to check with a highly qualified employment lawyer to ensure that all legal requirements were, in fact, met by your employer. The employment laws are complicated and intertwined. The basis for a claim might exist even if your employer claims to have followed the law.
At Peter A. McSherry Law Office, I provide each of my clients with a full assessment of his or her case. Disputes in wrongful dismissal claims are usually based on severance pay, benefits and/or the timeliness of the notice. However, if an employer claims or cites misconduct as the cause for dismissal, reasonable notice is not needed. We can discuss the facts of your case. I can help you discover and weigh your options in a straightforward manner with respect for your needs and objectives. I can protect your rights. Call me at 519-821-5465 or contact me by e-mail to schedule a consultation.