A letter of reference is a key term in a wrongful dismissal matter. It would be prudent in most situations to include the actual letter as a term of the settlement. Attach it as an appendix, along with a provision that the oral references are consistent with the content of the reference letter. In some situations, it is stipulated that the oral references are confined to what is stipulated in the reference letter. This way you have made the reference letter and the oral references an actual term of the settlement.
Jessica Maciel was just over 4 months pregnant when she was hired for the position of full-time receptionist in two related hair salons in the Erin Mills Town Centre, Mississauga. One hour into her first shift, Ms. Maciel started to experience nausea. She disclosed to her trainee and co-worker that she was pregnant. The trainee advised Ms. Maciel to report this information immediately to the Manager before she was told by someone else. When Ms. Maciel informed the Manager of her pregnancy, she was asked to pack up her belongings and leave. The following day her employment was terminated. The reason given by the Employer was that she felt Ms. Maciel would be unable to fill the full-time position. Ms. Maciel offered to work part-time in an effort to calm her Manager’s concerns about her pregnancy and long term availability but at no time did she indicate that she was unable to fill the full-time position for which she was hired.
At the hearing, the employer denied knowing that Ms. Maciel was pregnant at the time her employment was terminated. Ms. Maciel’s employer stated the reason for termination was that on the first day of her job, Ms. Maciel requested part-time work and indicated that she no longer wanted a full-time position. The Employer argued that it did not have any part-time positions available.
Based on evidence at the Hearing, the Tribunal did not find the Employer’s version of events to be credible as it did not make sense for a number of reasons. Ms. Maciel had applied for a full-time position. She was no longer in school and had no restrictions on her ability to work full-time. She would have needed to work at least 30 hours a week to be eligible for Employment Insurance Benefits during maternity leave. In addition, her Manager admitted at the hearing that she did not ask Ms. Maciel about when and how many hours she was able to work.
Ms. Maciel was unable to obtain employment during the remainder of her pregnancy.
The Human Rights Tribunal of Ontario found that there was discrimination on the basis of sex (pregnancy) and ordered the salons to pay $15,000 in general damages and $20,719.00 for lost wages and lost Employment Insurance benefits as a result of her inability to claim Employment Insurance benefits. An order was also made that the salons prepare a written policy on accommodation of pregnant employees consistent with its obligations under the Ontario Human Rights Code and the Ontario Employment Standards Act, 2000.
See: Maciel v. Fashion Coiffures, 2009 HRTO 1804 (CanLII)