January 21, 2004by Israel Foulon LLP
Question: I am an employee who will be returning from pregnancy leave shortly. I work in Ontario . What are my rights to return to the job I previously held?
Answer: The Employment Standards Act, 2000, provides specifically for the rights of an employee returning from either a pregnancy, parental or emergency leave.
The act states that following the conclusion of an employee’s leave, the employer must reinstate the employee to the position she most recently held, if it still exists, or to a comparable position if it does not. But this obligation does not apply if the employee’s employment is terminated for legitimate business reasons that are totally unrelated to the fact the employee took a leave.
The onus on the employer to establish the employee was dismissed for reasons solely unrelated to the leave is a significant one. The employer will have to provide proof there was absolutely no connection between the pregnancy leave and the termination of employment.
Accordingly there is a significant onus upon the employer to reinstate you to the exact position you held prior to your pregnancy leave. In order for the employer to avoid this obligation it will have to establish the position legitimately no longer exists. Of course, if that is the case, the employer is still required to provide you with a comparable position. In either case you must be paid at least as much as you were earning before the leave. Furthermore, if you would have received an increase in pay had you not been on leave, you must be given the higher pay on returning to work.
The Ministry of Labour tends to take complaints relating to this section quite seriously, and pursues them vigorously. The public policy which informs the legislative provisions relating to return to work from pregnancy leave is that no employee should be disadvantaged as a result of the decision to take a pregnancy leave.
If you are a unionized employee, you should check your collective agreement for provisions relating to maternity leave. Many collective agreements will provide for better maternity leave rights and benefits than the basic minimum rights found under employment standards legislation.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or firstname.lastname@example.org. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today