In the recent case of Nahum v. Honeycomb Hospitality Inc., the Ontario Superior Court of Justice confirmed that an employee’s pregnancy is a factor that should be considered when determining reasonable notice upon the termination of their employment.
The plaintiff, Ms. Nahum, was employed by the defendant, Honeycomb Hospitality Inc. (“Honeycomb”), as a Director of People and Culture, a human resources position. About four and half months into the role, Ms. Nahum’s employment was terminated without cause. At the time of the termination of her employment, Ms. Nahum was twenty-eight years old and five months pregnant. She was provided with one week’s notice.
Ms. Nahum brought an action against Honeycomb claiming that she was entitled to eight months’ notice. Although Ms. Nahum had signed an employment agreement, both parties agreed that the termination provisions contained therein was not enforceable.
As the main issue was to determine the reasonable notice period pursuant to common law, the Judge referenced the leading case on reasonable notice, Bardal v. Globe & Mail Ltd. In that case the Ontario High Court of Justice held that:
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.” (emphasis added)
The question for the Judge in this case was whether pregnancy should be added to the Bardal list of factors.
Honeycomb argued that it would be problematic for a court to find that pregnant people were less likely to find employment. They argued that such a conclusion would in effect penalize the dismissing employer for the potential human rights breach of a prospective employer.
The Judge disagreed with Honeycomb on the basis that “there is no certainty that an employer who prefers a candidate that is not pregnant is violating human rights legislation.” The Judge concluded that an employer seeking to fill a position may have an immediate need to do so and the “prospect of a new employee who will shortly require a lengthy leave will be unappealing to many employers and may not meet bona fide needs of their organization.”
Honeycomb also argued that in order for a court to conclude that a pregnant person was less likely to obtain employment, the court would require evidence. The Judge also disagreed with this argument. The Judge found that jurisprudence made it clear that the purpose of reasonable notice is to provide a dismissed person with a reasonable period of time to obtain new employment. The Judge concluded that, in most cases, a person’s pregnancy is likely to increase the amount of time it will take them to find new employment. The Judge also held that “judicial notice may be taken of this conclusion because it is a fact so notorious or generally accepted as not to be the subject of debate among reasonable persons.”
As a third point, Honeycomb also argued that adding pregnancy as a determining factor would open the door to the inclusion of other factors such as height. The Judge dismissed this argument, finding that there was nothing in this argument that recognized “the inherent barrier pregnancy poses to most job searches.”
The Judge, however, made it clear that “pregnancy should not function to automatically lengthen the notice period in every case.” Pregnancy is merely one factor to be considered in the circumstances of the case.
The Judge concluded that:
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.”
After weighing all the relevant factors, the Judge concluded that Ms. Nahum was entitled to five months pay in lieu of notice.
It should also be noted that the Judge did not include in its analysis the impact of the COVID-19 pandemic since Ms. Nahum’s employment was terminated prior to the pandemic and it could not have been anticipated at that time.
Unfortunately, the Judge did not say how much of the notice period extension was related to Ms. Nahum’s pregnancy. In any event, as we always advise our clients the process of determining reasonable notice can best be described as an art and not a science. In determining reasonable notice, courts will weigh all the relevant factors.
It is important to note that if there was an enforceable employment agreement with a valid termination clause, the above factors would have been irrelevant, and Honeycomb’s severance obligations could have been greatly reduced.
Our team is here to help you. If you are an employer with concerns about your obligations or looking to understand how you can reduce your severance costs, you can contact us for advice. Similarly, if you are an employee with questions about your rights and entitlements, you can also contact us for advice.