In Adekayode v Halifax (Regional Municipality), 2015 CanLII 13866, a Nova Scotia Human Rights Commission Board of Inquiry recently considered a complaint alleging that an employer’s failure to provide a top-up of employment insurance benefits for biological parents during a parental leave was discriminatory.
The definition of “family status” under human rights legislation continues to be one of the hottest topics in Canadian employment law.
We have written a number of times regarding cases that significantly depart from the so-called one month per year of service rule of thumb. Yet another case has illustrated the risk an employer runs in assuming their liability will be capped at one month per year of service.
The complainant, Leah Clark, filed a human rights complaint against her employer Bow Valley College alleging discrimination on the ground of family status contrary to the Alberta Human Rights Act. Ms. Clark, who was a nursing instructor, requested and was approved for maternity leave from February 1, 2010 through January 31, 2011. Ms. Clark went on approved sick leave in November 2009. Her child was born on January 2, 2010, almost seven weeks premature. After the child was born, the parties did not communicate about the start or end date of Ms. Clark’s leave.
On May 2, 2014, the Federal Court of Appeal clarified that an employer who fails to accommodate an employee’s childcare obligations may be found to have discriminated against the employee on the basis of family status: Canada (Attorney General) v Johnstone, 2014 FCA 110 [“Johnstone”].
A recent post cautioned employers to beware of using the one month per year of service “rule of thumb”. The Ontario Superior Court of Justice has once again affirmed that, depending on the circumstances, courts are willing to award short service employees significantly more than one month per year of service.
One of the questions at the forefront of many employers’ minds when they are considering terminating an employee without cause is how much it is going to cost. Unless there is a written employment contract with an express termination clause, an employer’s obligation is to provide reasonable notice of termination.