September 15, 2004by Israel Foulon LLP
Question: What obligations does an employer in Ontario have to reinstate an employee coming back from a pregnancy or parental leave? Can an employee ever be terminated while on leave?
Answer: When an employee takes a pregnancy or parental leave, employers may discover the replacement employee is better able to perform the job. Or the employee’s job duties may have been divided among several existing employees with good results. In these circumstances the employer may be tempted to maintain the current arrangement and try to reassign or to terminate the employment of the employee returning from leave. The courts and the Ministry of Labour have made it clear that, in these circumstances, the returning employee has a right to be reinstated to her former position.
Pursuant to section 53(1) of Ontario ’s Employment Standards Act, an employer is obliged to reinstate an employee who has taken a pregnancy or parental leave. The employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position if it does not. If the job is still there, and if the same work is being done, the employee has a right to return to that position, even if another employee has and is currently performing the job. A position cannot be deemed to “not exist” only because it is occupied by another employee.
Employers should be aware of a number of cases where courts and tribunals have interpreted section 53 to mean an employee returning from pregnancy or parental leave has an absolute right to be reinstated. The employer has a heavy onus to demonstrate the decision to terminate was wholly unrelated to the fact that the employee took a leave.
Legitimate grounds to terminate include:
- where there has been a mass lay-off;
- where the employee has been hired for a fixed-term contract, and this term expires while she is on leave; or
- where the employee was guilty of wilful misconduct.
If legitimate grounds exist the employer may dismiss the employee during her leave. Unless the employee is otherwise not entitled to notice, the employer is still obliged to pay notice to the employee.
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