Many factors can increase an employee’s reasonable notice period upon dismissal from their job. For instance, factors such as age, nature of the job, how long they worked there and what experience, training or qualifications they may have. However, the list as set out above is not the end of the story. There are additional factors that can come into play. One novel factor may be the COVID-19 pandemic. Another factor that sometimes people do not readily think about when assessing the length of a reasonable notice period is pregnancy.
In the recent case of Nahum v. Honeycomb Hospitality Inc., 2021 ONSC 1455, the court was faced with the question of whether or not a terminated employee who was also pregnant would serve as a factor to increase the length of the notice period.
The plaintiff was about 5 months pregnant when the defendant terminated the plaintiff without cause after about 4.5 months of employment. The defendant employer was a hospitality and entertainment company that owns and operates several restaurants and bars, primarily in Toronto. The plaintiff was hired by the defendant to be their Director of People and Culture and was paid $80,000 per year plus a cellphone allowance of $100 per month. The parties agreed that the termination clause in the employment agreement that the plaintiff signed was not enforceable.
The judge set out that while the COVID-19 pandemic might reasonably be thought to influence the plaintiff’s job search, it was not relevant in this case as her termination was pre-pandemic. As such, the judge did not consider it as a factor.
In weighing all the relevant factors, the judge concluded that the plaintiff was owed a notice period of 5 months. The judge specifically set out that the plaintiff’s pregnancy was a factor used by the court to lengthen the notice period.
The judge set out that contrary to the arguments of the defendant employer, it is not a certainty that an employer who prefers another candidate who is not pregnant is violating human rights legislation. For instance, the judge wrote in paragraph 43 that an employer may have an immediate need to fill a position and the prospect of a new employee who will shortly require a lengthy leave will be unappealing for many employers and may not meet the bona fide needs of their organization.
The jurisprudence is clear that the purpose of the notice is to provide a reasonable period for a person dismissed from their employment to obtain a new position. Therefore, objectively, a person’s pregnancy is likely to increase the amount of time it would take them to obtain a new position. The judge did note that this might not happen in each circumstance.
For example, a person who is searching for a job that would commence in the future would not be in need of a lengthier notice period. However, there is no reasonable excuse to not use pregnancy as a factor if applicable in determining the notice period when pregnancy is reasonably likely to negatively affect the person’s ability to find alternative employment.
Employers should take note that if they decide to terminate an employee while that employee is pregnant that they may be faced with a claim for an increase to the notice period that they should provide to the employee. The court was clear that this should not occur in each instance that a pregnant employee is terminated. However, it is a factor that will be looked at to determine the notice period regardless.