Pregnancy complicates staff reduction

Dismissing a pregnant employee is challenging enough; firing her the day after she breaks the news doesn’t exactly ameliorate your plight.

When Ontario-based BNA Smart Payment Systems recruited Pauline Kooner-Rilcoff as a sales representative for British Columbia, it had high hopes. Kooner-Rilcoff presented impressive experience capped by several awards for achieving top sales in Canada.

Having enjoyed several banner years in Ontario, Matthew Moore, BNA’s president and owner, anticipated she would replicate that success in the western market.

However, shortly after KoonerRilcoff joined the company, its fortunes in Ontario experienced an unexpected and abrupt downturn.

The company laid off three employees, but continued with its expansion plans.

Convinced B.C. required a different strategy, he promoted KoonerRilcoff to vice-president of sales, Western Canada and charged her with creating and managing a team of sales employees.

Kooner-Rilcoff energetically carried out her mandate.

Her recruitment efforts yielded six commission-sales representatives in contrast to only one or two in Ontario.

Moore discussed turning them into salary-based employees with Kooner-Rilcoff, whom he referred to as the company’s top sales person in Western Canada.

His approbations prompted Kooner-Rilcoff to turn down another job offer.

However, Moore was becoming impatient with the low results from the West.

A lot of money was being expended with little return and overall sales were declining.

But because Moore did not communicate this dissatisfaction Kooner-Rilcoff had no reason to believe her future was in doubt.

When Kooner-Rilcoff learned she was pregnant, she called Moore to share the good news.

He offered congratulations and talked about his experience as a father.

The very next day, Moore informed Kooner-Rilcoff the B.C. operation was being closed and as a result she was being let go.

Kooner-Rilcoff accused him of discrimination, but Moore said the pregnancy had no bearing on the decision.

She responded with a complaint to the British Columbia Human Rights Tribunal.

At the hearing, Moore claimed his vice-president of marketing had booked a trip to Vancouver to notify Kooner-Rilcoff of her termination before she announced her pregnancy.

But the adjudicator, Robert Bassina, was skeptical.

He noted that Moore did not produce a copy of the itinerary nor did he call the vice-president as a witness.

While acknowledging that the expansion was not generating revenue and necessitated cost cutting, the adjudicator found the company had not provided a non-discriminatory reason for terminating Kooner-Rilcoff immediately after she announced her pregnancy.

The pregnancy, he concluded, had spurred the company to act sooner than it had planned, which was a form of discrimination.

As a result, BNA was directed to pay damages for lost wages and injury to Kooner-Rilcoff ’s dignity.

Terminating a pregnant employee requires careful preparation to refute and defeat the inevitable allegations of discrimination.

The strategy I recommend includes:

• Candidly speak with staff

If a business is not doing well, employees should be told. Not only was Kooner-Rilcoff never blamed for the poor results in B.C., she was given no inkling her employment was in jeopardy as a result of the overall company condition. Instead, the company was praising her at the same time it was considering eliminating her position.

• Document decision-making

If an employer is deciding to terminate an employee for bona fide reasons, notes should be taken of the deliberations. Had BNA recorded its discussions about the proposed changes in British Columbia before Kooner-Rilcoff announced her pregnancy, it could have had persuasive evidence its decision was unrelated.

• A matter of timing

The dismissal should not be communicated within hours of a pregnancy announcement. Not only will a court or tribunal find that cruel, a nexus will be drawn between the notification and the decision.

The burden of proof will be particularly exacting.

• Don’t single out a pregnant employee

If a business is reducing staff, including a pregnant employee, effect the terminations of everyone at the same time. This is another way of rebutting an argument of

discrimination.

• Postpone, if possible

If an employer can afford to wait, it should consider doing so until well after a pregnancy leave is up.

It can then avoid battles for alleged violations of maternity leave provisions.