Can Demoting an Employee after Maternity or Paternal Leave Amount to Discrimination?
Ms. Partridge brought an action for wrongful dismissal. The trial judge agreed with Ms. Partridge, finding that Botony had no just cause for dismissal and as such awarded her twelve (12) months pay in lieu of notice. The trial judge also awarded Ms. Partridge damages after finding that Botony discriminated against Mr. Partridge on the basis of her family status.
For a more in depth summary of the facts and the Ontario Superior Court decision please see our pervious case summary: http://www.zeilikmanlaw.com/parental-leave-maternity-leave-and-the-human-rights-code-partridge-v-botany-dental-corporation
- wrongful dismissal rather than just cause termination; and
- discrimination based on family status.
The Ontario Court of Appeal’s Decision
The Court upheld the trial judge’s discussion with respect to the wrongful dismissal. The Court did not agree with Bontony that Ms. Partridge’s removal of the patients’ sheets constituted just cause termination, despite it being a breach of her employment obligations. The trial judge made a contextual consideration of the surrounding circumstances of Ms. Partridge’s employment and rightfully concluded that her dismissal was not warranted as a proportional response to her breach. Ms. Partridge’s removal of the patients sheets were not disclosed to a third party, there was no evidence she was using them to set up a competitive business and no solicitation of Botony patients, employees or suppliers. The Court held that based on the evidence, the trial judge was entitled to her finding and as such damages for a reasonable notice period were justified.
Similarly, the Court found that the trial judge did not err in her award of compensatory damages under s. 46.1(1) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19. The Court noted that there was ample evidence available to support a finding of wilful misconduct on the part of Botony. Further, the Court found that the case law, the trial judge relied on, supported the upper range of damages being awarded. The Court also found abundant evidence to support the finding that Botony committed multiple and deliberate breaches to the Human Rights Code, which amounted to discrimination of Ms. Partridge’s family status. This discrimination caused injury to Ms. Partridge’s dignity, feelings and self-respect as well as materially affecting her and her family’s economic security. These injuries were also well supported by the evidence.
The above article is for general information purposes only and does not constitute legal advice. If you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.