January 5, 2005 by Israel Foulon LLP
Question: Prior to taking maternity leave the employee was the only person in her department. She completed all tasks required to run the department and she advised senior management. While the employee was on maternity leave, a replacement was hired and worked for most of the year performing all the functions that the employee did prior to her leave. The Friday before the employee was to return, the employer told her the person hired to replace her was now her manager and the major tasks in the department and other duties once performed by the employee would now be performed by the new manager. Are there any grounds for constructive dismissal, discrimination or some other legal action?
Answer: According to Ontario ’s Employment Standards Act, when an employee’s pregnancy, parental or emergency leave concludes the employer is required to reinstate the employee to the position the employee most recently held.
The employee must be returned to the actual position held before the leave commenced. The employee can only be transferred to a comparable position if the position once held no longer exists at all. In this case, the position does still exist although it has been filled by someone else. Therefore, the employee should have been reinstated to that position.
The meaning of a “comparable” position depends on the circumstances. It is not enough that an employee simply be offered a job on her return, or that she be offered a job with the same pay and benefits she previously enjoyed.
To determine whether the job is a comparable position, a number of factors such as location, hours of work, quality of the working environment, degree of responsibility and job security must be considered. In this case, it seems the new job is substantially different from the previous job and is not a comparable position.
Once an employee returns to work, the employer can deal with that employee as it would any other employee, including dispensing discipline, lay-off or the termination of that employee.
The issue is whether the employee’s job was changed for an improper reason relating to the fact that she took a leave. In dealing with an employee returning from a leave, the employer’s conduct must be in good faith and with proper notice.
If the employee can show that this was not the case, she may be able to argue that she was not properly reinstated and was constructively dismissed. The employee could also argue under the Ontario Human Rights Code that she was discriminated against because of her sex, which includes discrimination because of pregnancy.
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 pi@qtw38575.mywhc.ca. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today