Hu­man rights com­plaint the best op­tion

Waterloo Region Record - - EDITORIALS & COMMENT - Donna Gee Donna L. Gee is the man­ag­ing part­ner of Guardian Law Group, a Cal­gary-based full-ser­vice law firm whose prac­tice ar­eas in­clude em­ploy­ment law, wills and es­tates law, will and es­tates lit­i­ga­tion, and hu­man rights law. Dis­trib­uted by Troy Me­dia

Work­ing women con­sti­tuted 47 per cent of the Canadian work­force in 2014, ac­cord­ing to Sta­tis­tics Canada. Women pro­duc­tively con­trib­ute to the econ­omy as labour­ers and cab­bies, busi­ness own­ers and engi­neers, and in count­less other ways. So one should think all em­ploy­ers would re­gard their work­place con­tri­bu­tions as im­por­tant enough to re­tain them when they become preg­nant or re-en­gage them when they come off ma­ter­nity leave.

Un­for­tu­nately, peo­ple work­ing in em­ploy­ment law (lawyers, hu­man rights ad­vo­cates, hu­man re­sources con­sul­tants) have been aware for some time of pri­vate sec­tor em­ploy­ers dis­miss­ing preg­nant em­ploy­ees or not hir­ing back women af­ter ma­ter­nity leave.

Those of us who’ve worked on hu­man rights files and wrong­ful dis­missal files know it’s not un­com­mon for fe­male em­ploy­ees to be of­fered a buy­out cheque, along with a let­ter they’re ex­pected to sign to waive their right to pur­sue le­gal ac­tion, in­clud­ing mak­ing a hu­man rights com­plaint.

Some lawyers and hu­man re­sources work­ers have coined the phrase ‘baby bounce’ for such sit­u­a­tions.

In the case of dis­missal of a preg­nant em­ployee, the most com­mon rea­son em­ploy­ers give is that it’s job-per­for­mance re­lated, how­ever vague that may be. In the case of a mom on ma­ter­nity leave, it’s of­ten lack of work that’s the pu­ta­tive rea­son.

De­pend­ing on the length of time a woman has been em­ployed, she may con­sider su­ing for wrong­ful dis­missal. How­ever, there are up­front out-of-pocket costs associated with a law­suit (court fil­ing fees among them) and the lit­i­ga­tion process can be lengthy and ex­pen­sive.

There’s an­other op­tion to con­sider: De­pend­ing on the facts, a preg­nant woman fac­ing ter­mi­na­tion or a mom com­ing off ma­ter­nity leave who learns she won’t be re­hired may have grounds for a hu­man rights com­plaint.

Hu­man rights tri­bunals and the courts have con­sis­tently ruled that ad­verse treat­ment be­cause of preg­nancy con­sti­tutes gen­der dis­crim­i­na­tion.

The hu­man rights com­plaint process is rel­a­tively straight­for­ward and, un­like a wrong­ful dis­missal suit, doesn’t en­tail fil­ing fees. The process is also less for­mal than pur­su­ing a civil claim in the courts and in­cludes an early op­por­tu­nity to dis­cuss a me­di­ated set­tle­ment.

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