Employer’s refusal to allow a woman who had taken maternity and parental leave to return to work at the conclusion of her leave can be discrimination on the basis of sex. However, in such a case, the Human Rights Tribunal must consider all of the circumstances and ask whether it is reasonable to infer that the maternity leave was a causative factor in the refusal to continue employment. Where the refusal to continue the woman’s employment following maternity leave is based not on the prohibited ground of sex, but rather on the basis of customer or employer preference for the replacement worker, and where valid reasons are provided for the preference, unconnected to any prohibited grounds, an inference of discrimination will not be justified.

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Gender – Employment law – Termination of employment – Judicial review – Evidence

Human Rights Commission v. Newfoundland and Labrador (Minister of Health and Community Services), [2009] N.J. No. 34, 2009 NLCA 9, Newfoundland and Labrador Supreme Court – Court of Appeal, February 12, 2009, D.M. Roberts, M. Rowe and L.D. Barry JJ.A.

The principal issue in this appeal was whether terminating the employment of a home care worker after maternity leave constituted discrimination because of sex, in contravention to the Human Rights Code, R.S.N.L. 1990, c.H-14.

Sharon McEvoy worked as a home care worker for Mr. Dalton for four months until she commenced maternity leave. The Department of Health and Community Services (the “Department”) funded 75% of her employment under a home support program and Mr. Dalton funded the balance. Best of Care Ltd., licensed by the Eastern Health and Community Services Authority, a corporation and agent of the Crown, was funded by the Department and responsible for the administration and delivery of home support services in Eastern Newfoundland.

When Ms. McEvoy commenced her maternity leave, Best of Care Ltd. hired a replacement worker, Ms. Power, at the request of the Dalton family, on the understanding that she was a temporary maternity leave replacement for Ms. McEvoy. When Ms. McEvoy was ready to return to work, Mr. Dalton wrote to Best of Care Ltd. to notify them that he intended to retain Ms. Power as his permanent caregiver. Best of Care Ltd. offered Ms. McEvoy other work; however, she declined, found a different job and complained to the Human Rights Commission that her termination was on the basis of her sex and pregnancy and thus constituted discrimination contrary to section 9 of the Human Rights Code.

A single-person Board of Inquiry found that Ms. McEvoy had established a prima facie case of discrimination on the basis of her sex, that the respondents had not established her termination resulted from any limitation or preference based on good faith occupational qualification, that both the Department and Best of Care Ltd. were employers of Ms. McEvoy and they were both liable to pay her $2,361.96 in lost wages and $3,000 in general damages.

The Crown successfully appealed to the Trial Division. The Trial Division judge concluded that the finding of the Board that Ms. McEvoy was discriminated against was unreasonable and that the Department was not an employer and not vicariously liable for any wrongful termination. The Human Rights Commission appealed that decision to the Court of Appeal.

The Court of Appeal noted that the failure to allow a woman who has taken maternity and parental leave to return to work at the conclusion of her leave can be discrimination on the basis of sex. However, the Human Rights Tribunal must consider all the circumstances and ask whether it is reasonable to infer that the maternity leave was a causative factor in the refusal to continue employment. The Court of Appeal noted in its reasons that Mr. Dalton did not decide to permanently hire Ms. Power while Ms. McEvoy was on maternity leave, thus preventing her from competing for the position. His decision was taken when Ms. McEvoy was ready and able to resume her previous duties, which Ms. Power had been filling until then on a temporary basis. Accordingly, at the relevant time, the Court found, Ms. McEvoy wasn’t in a position to compete with Ms. Power for the position.

The Court concluded that there was no evidence upon which to base an inference that maternity leave or pregnancy factored into Mr. Dalton’s request that Ms. McEvoy be no longer employed to look after him. The uncontradicted evidence established that the reason for the request was that Mr. Dalton was more familiar with Ms. Power and more comfortable with her providing personal care which he had not required prior Ms. McEvoy’s maternity leave.

The Court of Appeal concluded that the trial judge correctly found that even though Mr. Dalton’s decision was contemporaneous with the end of Ms. McEvoy’s leave, and the leave had provided him an opportunity to find a more suitable employee, the circumstances did not justify an inference of discrimination. Her maternity leave played no role and had no causative effect in the decision to terminate her employment. Further, apart from Mr. Dalton’s legitimate intentions, the Court held there was no evidence of an unintended discriminatory effect. The appeal was dismissed.

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