Lee Partridge worked originally as a dental hygienist for the Botony Dental Corporation and later as its office manager before she was fired following her return from a maternity leave in 2011.  She sued Botony for wrongful dismissal and for breach of both the Employment Standards Act, 2000 and the Ontario Human Rights Code.  In reasons released in January, Justice Healy of the Ontario Superior Court of Justice found in favour of Ms. Partridge and awarded her 12 months’ pay in lieu of notice as well as separate damages for breach of the Code.

Botony fired Ms. Partridge for just cause and it appears that much evidence was led during this five day trial held back in November of 2014 about Ms. Partridge’s performance and issues relating to her return from maternity leave.  After reviewing the seven specific allegations of just cause advanced by Botony, the trial judge found no evidence to support any of them, save and except one.  The court did find that Ms. Partridge had taken two documents home which contained confidential patient information, but further held that she did this to preserve evidence of her changed hours and not to misuse the confidential information in any way.  The court found that this was a breach of Ms. Partridge’s obligations to Botony but, as an isolated incident, was not so serious as to justify dismissal for cause.

With a case for cause not made out, this dental hygienist turned office manager earning roughly $70,000, was awarded 12 months’ notice for her less than 7.5 years of employment.  Attention then turned to the allegation that Ms. Partridge had been discriminated against on the basis of family status.

The dental office hours were 10 a.m. to 8 p.m. and the dental hygienists worked shifts within these hours. When Ms. Partridge was promoted to office manager, she was able to work a 9 a.m. to 5 p.m. schedule which accommodated her child care arrangement after her return from her first maternity leave. When it came time for Ms. Partridge to return to work after her second maternity leave (in July of 2011), for reasons which never became clear, Botony advised her that she would be returning as a hygienist and to working hours which the owner knew conflicted with Ms. Partridge’s child care arrangements.

In order to succeed in a claim that the Code had been breached, Ms. Partridge had to first establish that there had been a prima facie case of discrimination.  Applying the test set out in the Federal Court of Appeal’s decision in Johnstone v. Canada (Border Services) (2014), the trial judge held that a prima facie case was made out.  Ms. Partridge’s children were under her supervision and she was legally responsible for their care while she was working.  Ms. Partridge was held to have made reasonable efforts to meet her childcare needs through alternative solutions when she testified to the extensive efforts she had made to accommodate her new schedule.  However, the “complex set of childcare arrangements involving a number of extended family members and a neighbour” was not sustainable.  It was finally held that the new schedule interfered with her childcare arrangements in more than a trivial way.

When the onus then shifted to Botony to establish that the new schedule was a bona fide occupational requirement, the trial judge held that there was no evidence led to support such a finding. Similarly, the court heard no evidence as to why Ms. Partridge could not have been accommodated without undue hardship.  As such, it was held that Botony had discriminated against Ms. Partridge on the basis of family status, and Ms. Partridge was awarded $20,000 for injury to her dignity, feelings and self-respect.

Lessons for Employers

It might seem easy for employers to distance themselves from the facts of this case and think that no reasonable employer would dismiss for cause without good reason or discriminate against an employee in this fashion. However, we work closely with many small businesses and we know how easy it can be to make decisions which seem to be in the best interests of the business in the heat of the moment and without thinking through the long-term or legal implications. In our experience, this is some of the greatest value that an employment lawyer can bring to a business: sometimes just an objective set of eyes or a sounding board before an irreversible step is taken can provide that sober second thought and might prevent an outcome like the one in this case.

Christine Thomlinson

About the Author: Toronto Employment Lawyer Christine Thomlinson is a co-founder and co-managing partner of Rubin Thomlinson LLP. Appearing regularly on Best Lawyers and Leading Practioners lists in Canada, Christine is known for her high capability to think strategically, and her ability to find practical, often innovative, legal solutions to her clients’ challenging workplace issues.