Q. I was working for a company for 4 years. A few months ago I went on maternity leave. Last week I was called into the office and summarily dismissed without any notice or severance pay. I was told it is because I went on maternity and am costing the company money. Can I sue?
You most certainly can. Frankly, I continue to be shocked that in this day and age with all the information available to employers, many continue to treat their employees disgracefully. Amazingly, I receive many emails from women on maternity who are dismissed.
The term “wrongful dismissal” can be misleading. Dismissed employees often believe that when their employment is terminated, they have an automatic right to sue. However, the truth is that an employer is entitled to dismiss an employee when the employee’s services are no longer needed. Therefore, the fact that an employee was dismissed, does not necessarily constitute, in and of itself, a “wrongful dismissal”.
Your case, however, is in actuality a “wrongful dismissal” in every sense of the term. That is because under the Human Rights Code an employer is not allowed to discriminate against an employee for any reason, and particularly in this case, because of pregnancy or a resulting maternity leave. (It is unfortunate that we need a law to protect something as obvious as to not discriminate.)
Now, of course, you have to prove that you were dismissed as a result of the maternity. Indeed, it is common for employers when faced with allegations of discrimination to deny the charges. Most employers, ignorant though they may about the laws of discrimination, know enough to not provide a dismissal letter that clearly states that the termination was a result of the maternity. Getting witnesses can be difficult because often the only ones witnessing the employer’s infraction are other employees whom, even if summons to testify at trial, will not want to testify against their employer for fear of a reprisal (also against the law, incidentally).
So, what can you do? For one, if possible, send an email to your employer confirming you were dismissed because of your maternity. You should avoid making it obvious that you are trying to “build your case” for wrongful dismissal and discrimination. Understandably, this may be difficult and, generally speaking, better to get advice from a lawyer before firing (no pun intended) off emails to your former employer.
Most judges or decision-makers understand the difficulties of obtaining hard evidence in such a case, and if you make for a credible witness you may be believed anyway. This is particularly so if the dismissal does, indeed, transpire during maternity which would make it more than a mere coincidence to most legal thinkers analyzing the case. (This may be different, of course, if you had acted so egregiously during your maternity, such as defaming the company, that perhaps your dismissal during the maternity can be viewed as coincidental.)
While it is possible your damages are for more than $25,000, I will assume for the purposes of this discussion that they are not. (A full discussion of how a wrongful dismissal action including aggravating factors such as discrimination can be quantified is beyond the scope of this column but has been described in detail in past columns.)
In terms of what you can do, there are generally two approaches. One is to sue in the Small Claims Court for wrongful dismissal damages and breach of the Human Right Code and the other is to file an application with the Human Rights Tribunal of Ontario. The Tribunal is generally quicker than the Small Claims Court, though not always. Another benefit to the Tribunal is that the damages, again, generally speaking, can be treated as general damages and not employment income subject to statutory deductions. That said, because the Tribunal is limited to the discrimination element only and not damages for wrongful dismissal, the Small Claims Court can prove to be more lucrative. Plus, if the matter settles or if a judge sets out different heads of damages, the discrimination portion of the Small Claims Court action can also be statutory-deductions free. (Note, the writer does not purport to be a tax expert and those with taxation questions are always advised to seek counsel with an accountant or tax lawyer).
Your ex-employer ought to be ashamed of itself. There is never an excuse to dismiss an employee because she went on maternity leave, period. By being informed of your rights and taking appropriate action, you can make your former employer pay for its discriminatory practices. As always, you should consult with a legal professional to discuss the particulars of your specific case before you do anything.
The information herein should not be taken as legal advice and may have been changed since published. Do not treat information provided in the article as a recommendation to act or refrain from taking action, or as legal advice. The information provided is not a substitute for the assistance of a licensed legal adviser.
