Employee With 4.5 Months’ Service Gets 5 Months’ Notice; Judge Rules Pregnancy a Factor in Assessing Notice Period

An Ontario judge has ruled that an employee’s pregnancy is one of the factors to be considered in assessing the length of the common law notice period.

Brief Facts:

In Nahum v. Honeycomb Hospitality Inc., 2021 ONSC 1455, an employee was about 5 months pregnant when she was dismissed without cause. At the time that her employment was terminated, the employee had 4.5 months’ service. She occupied a middle management position.

Ruling:

At the summary judgment motion, the sole issue was the length of the reasonable notice period and the impact that the employee’s pregnancy had on that determination. Relying on past case law, the judge took judicial notice of the fact that “…pregnancy creates difficulties for a person searching for employment.” That said, the judge cautioned that an employee’s pregnancy would not operate to lengthen the notice period in all cases – it should simply be another factor to consider in the circumstances of the particular case. For example, in the case at hand the employee had applied to 36 positions after her dismissal and before her baby was born. Accordingly, in the judge’s view, “…given the point in her pregnancy at which she was terminated, and the competitive job market in which she was seeking work”, it was unreasonable to expect she would be able to obtain new employment in the 2 month period proposed by the employer.

Takeaway for Employer:

The dismissal of pregnant employees is always a sensitive issue for employers. There can be human rights considerations, and as this case illustrates, depending on the facts, it could lead to a lengthier notice period. That said, as the judge notes the assessment of an employee’s entitlement to reasonable notice will still require a consideration of all factors (age, years of service, character of employment, availability of similar employment, etc.) applied in the circumstances of the particular case at hand. As such, employers should continue to assess each case individually and be careful about applying any specific formulas.

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Andy Pushalik

About Andy Pushalik

Andy is a partner and the practice group leader of the Employment and Labour group of Dentons’ Toronto office. Andy has a broad labour and employment practice serving as “go to” outside labour and employment counsel to a wide variety of companies, charities and public sector organizations. Clients frequently seek Andy’s advice on sensitive human resources matters including workplace restructurings, discrimination and harassment complaints and workplace investigations. In addition, Andy regularly represents employers in all aspects of labour and employment litigation, including wrongful dismissal matters, grievance arbitrations and restrictive covenant disputes.

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