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parental leave

Why parental leave doesn’t offer an iron-clad job guarantee Add to ...

It is possibly the biggest controversy in workplace law: Do employers get away with terminating employees on pregnancy or parental leave illegally because of a “loophole” in legislation, or do the additional legal provisions extended to new parents go beyond what is necessary to ensure they are protected? The answer is often a matter of perspective.

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Provincial and federal employment standards acts govern employers’ pregnancy and parental leave obligations across the country, as do human rights laws. Most of these statutes either prohibit termination entirely or create a right of reinstatement following a pregnancy or parental leave. However, the right to reinstatement is not absolute. In most cases, an employer must reinstate an employee to his or her job following a pregnancy or parental leave, although this obligation can be avoided where employment is ended solely for reasons unrelated to the leave.

In certain situations, the law is very clear. If a division or a plant closes, there is no job to return to and no right of reinstatement. Alternatively, an employee cannot lose her job just because her maternity leave replacement has no childcare obligations.

But what about those grey areas in-between? Must an employer reinstate a mediocre employee whose poor performance is only realized when her maternity leave replacement does a far better job? What if there is a corporate restructuring and some but not all of the employee’s functions are transferred?

Should the exception to the reinstatement obligation apply only in the clearest of cases or should an employer have the right to reorganize its workplace in the most efficient manner possible? There may be no right answer. The exception to reinstatement under Ontario’s employment standards legislation, for example, does not define any reasons that are “unrelated” to the leave, so it is unclear how far the legislature which drafted this statute intended for this exception to apply.

Labour tribunals and human rights commissions across Canada take a protectionist approach towards employees, ruling that if any part of an employee’s termination was related, however modestly, to a pregnancy or parental leave, then it is illegal. But their policies are not legally binding and their courtroom precedents are often fact-specific: what is deemed discrimination in one case is not necessarily considered such in another.

In addition, many disputes over pregnancy and parental leave terminations never make it to a hearing because of the costs of a lawsuit, or the time it takes for one to wind through tribunals. Therefore, employers and employees are often left to grapple over their rights and obligations between themselves.

In a case my firm argued last year, a provincial labour tribunal upheld the exception to reinstatement where an employee’s maternity leave replacement was hired full-time to perform her job. The reason it gave was that one of the incumbent’s various clients did not want to continue to work with her. However, she worked with a number of clients who would have continued to work with her.

In the judge’s view, an employer should not have to reinstate an employee that an important client would not work with. But was her termination solely “unrelated” to her maternity leave? This case could have gone either way. If the exception to reinstatement was designed only to apply where there is clearly no job to return to, then the employer should never have won this case. However, if all an employer must show is that it had a good reason to fire the employee, then the court has reaffirmed that the right to reinstatement after a parental leave is not absolute.

Daniel A. Lublin is a workplace lawyer and a partner at Whitten & Lublin.

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