In Kooner-Rilcof v. BNA Smart Payment Systems, Ltd., the British Columbia Human Rights Tribunal determined that an employer who terminated a Vice President of Sales for Western Canada one day after being informed of her pregnancy acted in a discriminatory manner and in contravention of the Human Rights Code.
On September 15, 2010, the employee, Pauline Prabhjot Kooner-Rilcof, informed the President, Matthew Moore (“Mr. Moore”) of her pregnancy and informed him that she would be taking maternity leave at the end of December or early January. The next day, Mr. Moore informed Mrs. Kooner-Rilcof that her employment was being terminated without cause due to the financial circumstances of the company and the closing of the B.C. operations. Mrs. Kooner-Rilcof was provided with two weeks in lieu of notice representing her statutory notice entitlement. Prior to termination, Mrs. Kooner-Rilcof had a positive work record and was regarded as being a key employee. She had not received any negative feedback or any form of discipline. As a result, the sudden news of her termination came as quite a shock to Mrs. Kooner-Rilcof. In the months after Mrs. Kooner-Rilcof’s termination, the company did terminate five other employees, however the B.C. operations were never officially closed. The B.C. operations remained open for existing customers although the company did not actively canvass new clients through the B.C. office. Mrs. Kooner-Rilcof filed a Human Rights Application against both BNA Smart Payment Systems, Ltd. and Mr. Moore alleging discrimination on the basis of sex and seeking approximately $50,000.00 in damages for lost wages, loss of benefits, general damages for injury to dignity and mental distress and legal fees.
The Tribunal considered all of the circumstances leading up to Mrs. Kooner-Rilcof’s termination, including her job performance as well as the financial status of the company. At the Tribunal, Mr. Moore testified that he had intended on terminating Mrs. Kooner-Rilcof’s employment prior to being informed of her pregnancy as part of their plan to cut costs, and therefore, the decision to terminate her employment was unrelated to her pregnancy. The Tribunal determined that although the company’s financial difficulties were not in dispute, the company and Mr. Moore failed to adequately provide a “non-discriminatory explanation for terminating the Complainant’s employment as soon as they learned of her pregnancy.” The Tribunal therefore concluded that “the Complainant’s pregnancy was an operative factor in her being dismissed” in contravention of the Human Rights Code. The Tribunal awarded Mrs. Kooner-Rilcof a total of $11,000 in damages for discrimination on the ground of sex, lost wages and compensation for injury to dignity, feelings and self-respect.
Impact of Decision on Employers
When considering whether to terminate an employee, employers should consider the personal circumstances of the employee and whether the timing of the termination may result in the employee bringing an application seeking damages for discrimination and breaches of Human Rights legislation. If an employer is considering terminating an employee for business or financial reasons, this should be carefully documented in case the employer is later required to explain the reasons behind the termination if the timing appears to be suspicious. Of course, it is always strongly recommended that employers consult with Employment Law lawyers when they are considering terminating an employee and to obtain legal advice with respect to the termination process, including the timing of the proposed termination.
Impact of Decision on Employees
Pregnant employees should be aware that they have certain protections under Human Rights legislation as well as employment standards legislation. Employees who are pregnant and terminated shortly after disclosing their pregnancy to their employer or when they are either getting ready to take maternity leave or return to work from maternity leave, should consult with an Employment Law lawyer to determine whether the employer’s decision to terminate was in fact an act of discrimination. If so, there are various remedies that can be pursued and through various forums, such as the Human Rights Tribunal or the Court system.