THE QUESTION
I am 6 1/2 months' pregnant and, due to complications, my doctor suggested I go on sick leave before maternity leave. I offered to continue working for the company remotely and they agreed I could do so, for six weeks. However, I was terminated two weeks later without cause. I received severance, but am left without health insurance. I had been with the company for three years. I signed a full and final release, and think maybe I should not have. When is the due date for filing a claim, if I have a case?
THE FIRST ANSWER
George Cottrelle
Partner, Keel Cottrelle LLP
The laws of Canada prohibit discriminatory termination of employment related to pregnancy.
Your employer allowed you to work from home until you commenced maternity leave.
Your employment was terminated two weeks later.
Leaving aside the release, you have a right to initiate either civil proceedings for damages for wrongful dismissal, or to make an application for compensation and possible reinstatement, under either the human rights or employment standards legislation applicable to you, for discriminatory, or reprisal, termination. The onus is on your employer to establish that the termination was not related to your pregnancy.
The time limits to commence civil proceedings, or to make a claim under human-rights or employment-standards legislation, are generally six months to two years, but can be as short as 45 days, depending on the applicable province and the nature of the proceeding.
The fact that you received a severance payment and signed a release may prevent you from initiating civil proceedings, or filing a human-rights or employment-standards complaint, with certain exceptions. For example, if you received the statutory minimum severance only, then the release should not preclude you from filing a human-rights complaint, or commencing civil proceedings.
The courts sometimes decline to enforce releases where there is an inequality of bargaining power, financial pressure is used to take advantage of a vulnerable employee, or where it is otherwise inequitable. However, if there was a bona fide settlement, and the release is properly worded, then your case may well be closed.
THE SECOND ANSWER
Colleen Clarke
Corporate trainer and career specialist
I am deeply sorry for your misfortune. What a cheap shot by the company! This is not the time to be job searching and you won't feel like it while being a new mom, so put everything, including your resentment, on the back burner for the time being.
Get your résumé updated so you are ready to roll when you decide to go back to work. Set a date for when you plan to return because time will fly by and procrastination can be your enemy. Build in a plan to start your job search at least three months before your return date. Start your job search mentally before you start physically.
Scroll Internet job sites for positions and register with recruiters a few months before you start back. Take every advantage of all opportunities to network. Get your 30-second presentation honed so when you ask other moms about themselves you are prepared to share your expertise and what you are looking for. Tell your doctor, who sees a number of patients each week, what type of work you will be seeking.
Use the free services of an employee assistance program (EAP) through your husband's company. They help with résumés, job-search strategies and can be someone to talk to while you are off, a mental-balance system for you.
Colleen Clarke