By now you've read enough of our blogs to commit the common law reasonable notice of termination "Bardal" factors to memory: character of employment; length of service; age of employee; availability of similar employment having regard to experience, training, and qualification of the employee. In a recently released decision from the Ontario Superior Court, the Plaintiff sought to add a factor – pregnancy.
In Nahum v. Honeycomb Hospitality Inc., the Plaintiff was a 28 year old American who moved to the Toronto area with her spouse, and took a job with a hospitality and entertainment company as its Director of People and Culture – a Human Resources position. She was subject to a three month probationary period which she had just completed before being terminated after roughly four and a half months of employment. The termination was on a without cause basis, and the employee was about five months pregnant when she was terminated at the end of October 2019.
The parties agreed that the Plaintiff's employment contract did not contain enforceable termination language (let this be another lesson to all of our readers) and accordingly the lone issue in dispute was the length of her common law reasonable notice of termination period. The Plaintiff sought an eight (8) month notice period, while the employer submitted that two months was generous.
The Court deemed the Plaintiff's character of employment to be that of a mid-level manager, but did not explicitly comment how that impacted the notice period calculation. It noted that her four and a half months of employment was "very short", again without explicitly commenting on the impact to her notice period, and also that her age "should not be an impediment to obtaining a similar position.
Availability of similar alternate employment, or more specifically the lack of available jobs, was found to increase the notice period. The Plaintiff applied to at least 36 jobs before giving birth in February 2020, and another 75 positions afterward. She took only 2 months off from her job search. Obviously the employer took no issue with her mitigation efforts, and although COVID-19 may have impacted her job search, it was not a foreseeable factors at the time of her termination and neither party sought to rely on it for their case. The Court inferred from the Plaintiff's lack of success in landing a new job out of over a hundred applications, even in light of her respectable education and work experience (albeit in the United States), that there was a competitive job market with many available candidates who had a skill set similar to the Plaintiff.
And then there was the Plaintiff's pregnancy. She argued that it ought to be a factor extending her notice period, and the employer of course took the opposite view. The Court reviewed precedent case law, including Harris v. Yorkville Sound Ltd. in which the Ontario Superior Court ruled in part:
It seems to me that if part of the concern in the exercise of setting reasonable notice is the availability of other work, and the possibility of the dismissed employee being hired for it, then pregnancy has to be a consideration.
The employer argued, in part, that the Court should not simply take judicial notice that it is harder for pregnant job-seekers to land a new role, because doing so implies that prospective employers will violate human rights legislation in their hiring practices, and the dismissing employer will be held responsible for the wrongs of other. The Court rejected this argument, somewhat confusingly I suggest, by stating that it is not necessarily a human rights violation for a prospective employer to pass on a pregnant candidate because hiring a new employee who would require a lengthy leave shortly after being hired may be "unappealing" to them, and may not meet the bona fide needs of the organization.
The Court ultimately decided to follow the jurisprudence in cases like Harris, and took judicial notice "that pregnant people face additional challenges when looking for work" because "it is a fact so notorious or generally accepted as not to be the subject of debate among reasonable persons."
The Court's ruling did not stop there. It continued on to determine that:
... pregnancy should not function to automatically lengthen the notice period in every case. Like all factors relevant to the notice period, pregnancy is one of the factors to be considered in the circumstances of the case.
...
However, there is no principled reason why, when determining the damages of a wrongfully dismissed employee, their pregnancy at the date of dismissal should not factor into the reasonable notice period when their pregnancy is reasonably likely to negatively impact their ability to find alternative employment.
Without much actual analysis of the Plaintiff's individual circumstances in the decision, the Court decided that she was entitled to five (5) months' reasonable notice of termination under the common law. It stated that her pregnancy was "an important factor in assessing reasonable notice in this case, along with the character of her employment, and her brief length of service."
It is somewhat difficult to marry the Court's statements that pregnancy does not automatically lengthen the common law notice period on one hand, and its willingness to take judicial notice that pregnancy complicates job searches. The best approach for employers is likely to anticipate longer notice period awards for employee who are pregnant at termination, but to be mindful of situations where pregnancy may not actually be an impediment, such as where the employee's skills are so specialized, or actual work assignments are not expected to begin until some future point in time.
At any rate, there is no scientific formula for determining a terminated employee's reasonable notice period at common law, so the Lawyers for Employers at CCPartners always recommend ensuring that a business has clear and enforceable employment contracts setting out termination entitlements to govern such disputes. If your organization does not currently use employment contracts, talk to our professionals to see how we can assist. And if you are already faced with a demand for wrongful dismissal damages, CCPartners can give you an assessment of your potential range of liability, including by accessing emergency AI technology to compile and analyse applicable case law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
