The recent Superior Court decision of Partridge v. Botany Dental Corporation serves as a reminder to employers that they have obligations under the Employment Standards Act to make sure that they reinstate employees who have gone on maternity or parental leave. However, this case also sets out how courts are also broadening the scope of that obligation such that a refusal to reinstate an employee may amount to a breach of the “family status” protections of the Human Rights Code.
The plaintiff, Lee Partridge (“Partridge”), was a 39 year-old dental hygienist. She worked for the defendant, Botany Dental Corporation (“Botany”) for over 7 years until her dismissal in July, 2011. She was initially hired as a dental hygienist and then in 2007 her role changed to that of an office manager. As an office manager, she made $41/hour and her yearly income was about $70,000. Her work hours were from Monday to Friday, 9 am to 5 pm.
Partridge went on maternity leave in June 2010. Prior to her return to work in July 2011, the owner of Botany advised her that she would be returning to work as a hygienist because the office manager position was no longer available which in doing so also reduced the hours she worked (as well as the certainty of those hours) and the rate of pay.
Partridge alleged that she tried to assert her statutory rights and advised Botany that she should be reinstated to her previous position as office manager. However, in response, the owner of Botany demanded that she work hours that she had not worked prior to her maternity leave including times that he knew conflicted with Partridge’s daycare arrangements.
Eventually, when Partridge again tried to assert her statutory rights to reinstatement, Botany terminated her employment alleging that she was fired for cause. In response, Partridge sued and alleged that she was wrongfully dismissed and was owed reasonable notice or pay in lieu of notice. She went on to allege that the refusal of Botany to reinstate her to her prior position was discriminatory and in breach of the OntarioHuman Rights Code.
The result? The Superior Court found that Partridge was wrongfully dismissed and awarded her 12 months wages in lieu of reasonable notice.
DISCRIMINATION CONTRARY TO THE PROTECTIONS OF THE ONTARIO HUMAN RIGHTS CODE ON THE BASIS OF “FAMILY STATUS”
The Superior Court went on to find that Partridge was also discriminated against on the basis of “family status”, which was contrary to the rights protected in the in the Ontario Human Rights Code.
The Superior Court used the Federal Court of Appeal decision of Johnson v. Canada (Border Services) which set out that “family status” incorporates parental obligations such as childcare arrangements. Judge Healy applied the legal test in Johnson which determines whether or not there is discrimination that stems from a workplace rule that “interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation”. After applying this test, Judge Healy found that there was discrimination.
Judge Healy writes in paragraph 98:
The discrimination experienced by Partridge clearly did injury to her dignity, feelings and self-respect, as her testimony made clear that she took great pride in her job and the efforts that she had made on the defendant’s behalf. At the time of her testimony in this trial, she remained visibly emotionally affected by the ordeal. As in Johnstone, I found that the discrimination arose out of Jauhal’s wilful and reckless disregard for her legal obligations as an employer. Accordingly, I found that the sum of $20,000 for breach of the Human Rights Code was a just and proper sum to signify the seriousness of breaches of this nature. Particularly where the discrimination has ultimately taken the form of dismissal, this particular breach affects a group of individuals who typically require childcare arrangements out of economic motivation. The discrimination not only has the effect of causing injury to dignity, feelings and self-respect, but may have an economic impact on individuals who can often least afford it. The Court’s censure is warranted by way of an award that will act as a deterrent to employers who are unwilling to accommodate childcare arrangements, except where legitimate, justifiable grounds exist for being unable to do so.
The result? The Superior Court awarded Partridge $20,000 in damages for breach of the Ontario Human Rights Code.
Employers should use this case as an example of what not to do. It seems clear now that not only is there the general requirement that employers reinstate employees who go on maternity or parental leave pursuant to the Employment Standards Act but that courts may also find discrimination when employers fail to accommodate their employee’s childcare needs or obligations under the Human Rights Code.