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Employment & Labour, Human Rights

Damages for dad fired after taking leave may signal new wave of claims

A father who won damages after he was fired for taking parental leave could signal the start of a new trend for family-related human rights claims, says Hamilton employment lawyer Jennifer Zdriluk.

The father in the case was awarded $63,000 in compensation after the Human Rights Tribunal of Ontario found his employer discriminated against him on the basis of family status.

Zdriluk, a partner with Ross & McBride, tells AdvocateDaily.com that the decision reflects a recent increase in the number of fathers making human rights applications based on parental leave rights, but the trend could be even broader.  

“Today, I think we have a large and expanding definition of ‘family’ and numerous different examples of how those families are choosing to deal with their child-care responsibilities and obligations,” she says. “I think you will also see an increase in various members of family units, such as siblings and grandparents trying to make such claims.

“The problem with this, however, is that in my opinion our laws aren’t designed to appropriately deal with these issues,” she adds.

The father in the case managed a retail kiosk for a cellphone company, and requested parental leave to assist his wife in the care of their baby daughter.

According to the decision, he was pressured not to take the leave by his boss, and was warned that he could be putting his career at risk by doing so.

When the infant fell seriously ill seven months later, the father took a six-month emergency leave, but his colleagues at work were informed that he had in fact resigned. In one incident, the father’s boss even threatened to call security when he stopped by his kiosk during the leave, the decision says.

After filing his human rights complaint, the father was moved to another, less convenient location. Then, just weeks into his return to work, he was fired based on an improperly investigated allegation of sexual harassment. 

“When an employee is penalized for wanting to take, or actually taking, a parental leave, this constitutes discrimination on the basis of family status,” Tribunal vice-chair Naomi Overend’s decision reads.

In addition, “the applicant has established, on a balance of probabilities, that the scrutiny and isolation he experienced following his leave, and the termination of his employment shortly thereafter, were acts of reprisal for instituting this proceeding,” she added, before awarding him $30,000 compensation for injury to his dignity, feelings and self-respect, plus a further $33,000 for loss of wages.

Zdriluk says that fathers are likely to feel more pressure in some workplaces than mothers to bypass their rights to parental leave. And while the decision has “many positive aspects,” she worries that it fell short in others.

“More needs to be done, however, in the area of remedy to deal with these issues. The general damage awards are modest and don’t really address the severity of the harm caused,” Zdriluk says.

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