Although many employment law developments of late have been concerned with how to deal with the COVID-19 pandemic, there are other issues that still affect employment law matters. When it comes to reasonable notice in Ontario, the court, of course, always takes the Bardal factors into account, which we have discussed in previous posts. However, sometimes there are additional factors that play a role in a court’s assessment of reasonable notice. For example, the Ontario Superior Court of Justice recently released a decision in which it determined whether pregnancy should be a factor in awarding an extended notice period.

Short-Term Employee Pregnant at the Time of Dismissal

The employee was employed by a hospitality and entertainment company that owned several restaurants and bars in Toronto and elsewhere in the province. The employee held the position of Director of People and Culture, a human resources position that paid $80,000 annually, plus benefits. When she began her employment, she was subject to a three-month probationary period. By the time she was terminated, she was five months pregnant and had worked for the employer for four-and-a-half months.

The employee had signed an employment agreement at the start of her employment, however, both parties conceded that the termination clause was unenforceable. Upon termination, the employer offered two months’ notice, however, the employee sought an eight-months’ notice period.

Bardal Factors for Reasonable Notice

Once again, this court looked at the four Bardal factors set out in Bardal v. Globe & Mail, a case decided in 1960 that still guides the thinking in Ontario with respect to reasonable notice. Primarily, the case helped to establish a set of factors to be taken into consideration when determining appropriate reasonable notice upon termination. Those factors are:

• Length of employment;
• Age of the employee;
• Whether comparable employment was available;
• Type of employment.

In this case, the employee sought to add to this list the fact that she was midway through her pregnancy when she was let go.

Court: Pregnancy Often Delays New Employment

The Ontario Superior Court of Justice found that the employee’s position was that of mid-level management. The employee did not have significant decision-making responsibilities nor hiring responsibilities. The employer expected her to develop the human resources operations at the company. This task required responsibility as well as leadership. Accordingly, the court found that the employee performed functions for mid-level management.

After her dismissal, the employee had consistently looked for work. Even though she has put out those efforts, both before and after her baby’s birth, she has not found employment.

The court made several findings regarding the jurisprudence regarding a person’s pregnancy and employment. The jurisprudence the court referred to made it clear that the purpose of reasonable notice is to provide a reasonable period of time for a person dismissed from their employment to obtain a new and comparable position. Furthermore, objectively, the pregnancy of an individual was likely to increase the amount of time it would take that individual to find new employment in most cases. Most employers want to fill a need in their organization with someone who will be present to fill that need right away.

In addition, previous court decisions have concluded that pregnancy creates difficulties for a person searching for employment. Accordingly, this court found that past judicial consideration supported the conclusion that it was open for the court to take judicial notice that pregnant individuals faced additional challenges when looking for work. Judicial notice was able to be taken of this conclusion, because it was a fact so notorious or generally accepted as not to be the subject of debate among reasonable individuals.

However, the court also found that a pregnant person may not always be impeded in their job search due to pregnancy. For instance, this could be the case where the individual was searching for employment to start in the future. Another example of this would be a pregnant individual that has very specific skills, which are in demand. This individual may reasonably expect to find a company willing to accommodate their upcoming need for maternity leave.

No Reason Pregnancy Should Not Factor Into Notice Period

The court concluded that there was no principled reason why an employee’s pregnancy should not factor in the reasonable notice period. This is especially so when the individual’s pregnancy is likely to negatively impact their ability to find alternative employment.

The court concluded that in this specific case, the employee’s pregnancy had to be taken into consideration, in addition to the Bardal factors. After termination, the employee had applied to 36 positions before her baby was born. In the circumstances, it was found to be unreasonable to expect that she would be able to obtain new employment in the two-month period proposed by the employer. This was especially so, given the point in her pregnancy at which she was terminated, and the competitive job market in which she was seeking work.

The court concluded that the employee was entitled to a five months’ reasonable notice period.

This case should make clear that while Ontario courts use the Bardal factors to determine reasonable notice periods, those are not the only factors the courts will take into consideration.

For advice on wrongful dismissal disputes, termination letters and other employment or labour law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.