February 4, 2015
By Brad Smith
A decision of the Ontario Superior Court of Justice shows the risk of terminating an employee without cause.
In Partridge v. Botony the employee was hired as a dental hygienist but promoted to the position of office manager. The employee was the office manager when she went on maternity leave.
Prior to returning from maternity leave, the employer notified the employee her office hours would change and she would be returning as hygienist rather than office manager. When the employee insisted she receive her prior hours of work, the employer retaliated in her demeanor, again changing the work hours and then terminating the employee.
The trial judge identified several problems with the employer’s actions, including:
- The employer did not have cause.
- Not returning the employee to the position of office manager, contrary to the Employment Standards Act. Section 53 states at the end of a leave, the employer shall reinstate the employee to the position the employee most recently held, if it still exists, or to a comparable position, if it does not.
- The employer actions, including the termination, were a reprisal contrary to the Employment Standards Act.
- The employer knew the office hours were incompatible with the employee’s day care. This was discrimination on the basis of family status contrary to the Human Rights Code.
- The employer’s counterclaim was an attempt to intimidate the employee.
In its conclusions, the Court determined the employer should have provided the employee with 12 months notice or pay in lieu of notice (after employment of 7.3 months). The employer was also required to pay $20,000 for breaching the Human Rights Code.
The take away is an employer should proceed with caution when changing terms of employment or terminating immediately after an employee returns from a leave.
Historically an employee could not recover compensation for wrongful dismissal and a human rights breach in a court action. The Human Rights Code was amended specifically to permit this recovery. This gives a terminated employee more remedies. Partridge v. Botony illustrates what a terminated employee may recover and the risk to employers.