If there's one workplace matter that confounds employers and employees alike, it's the subject of pregnancy leave. Employers feel as though they are constrained from taking any action in relation to employees who are on or about to go on pregnancy leave, while employees believe that taking pregnancy or parental leave renders them bulletproof.
Neither is true. Employees who take pregnancy and parental leave cannot suffer adverse consequences because of that leave, but they can be dismissed for legitimate business reasons unrelated to the leave of absence.
Employment standards legislation at both the federal and provincial level is clear: Employees returning from pregnancy or parental leave must be placed back into the position that they most recently held, unless that position truly no longer exists. Human rights legislation also exists in protection of that right.
It would be discriminatory to dismiss an employee returning from pregnancy or parental leave given this absolute right, unless the employer could demonstrate a bona fide reason relating to its business in order to do so. An employer cannot simply retitle the position, or shift a few duties around, and claim that the position was eliminated, as both courts and tribunals will carefully scrutinize any such allegation. Only if the position was eliminated can the employer place the employee into a different, yet comparable position. It is only in the unusual situation where there is no comparable position that the employee may be dismissed.
We know that it is not unusual for an employer to discover during an employee's leave that he or she was not performing well. Sometimes, they will find that the replacement is the preferable choice. As a result, they decide that they want to keep the replacement and not bring the employee on leave back. However, doing so is a critical mistake. Since the situation arose because the employee was on leave, the decision to dismiss was therefore caused by taking the leave and was unlawful.
Likewise, the law is clear that employers cannot reassign the employee, change their reporting structure or compensation, or do anything else that would suggest they were being penalized. That would not only be considered constructive dismissal, but also in the case of a mother, discrimination on the basis of sex, contrary to human rights legislation. It would also be considered a decision made in bad faith, something worthy of extraordinary damages under common law.
That said, there is a common misconception that employees on leave are "untouchable" and cannot be dismissed for any reason. This is untrue. If the business is restructured while the employee is away, and their position is legitimately eliminated, not just divided up between other employees, then the employer may terminate the employment relationship. Employees are not entitled to more protection than their colleagues simply because they are on pregnancy or parental leave. By way of example, if an entire department is eliminated, and one member of the department is on parental leave, that individual does not enjoy additional protection; they can be dismissed as well.
Of course, any dismissal of this nature would require the provision of reasonable notice or pay in lieu of notice, unless there is an enforceable termination clause contained in the employee's contract of employment. As well, such a decision would be more carefully scrutinized to ensure that the position was actually eliminated, and the employer was not acting in bad faith during the course of dismissal.
With this in mind, employers should approach the dismissal compassionately, fairly and reasonably. The birth of a child, while a happy event, can also be a stressful time as new parents contemplate the impact on their professional lives. This stress is greatly exacerbated by the need to arrange proper daycare and prepare for re-entering the workplace after being away for such a lengthy period of time. Such stress ought not to be further exacerbated by an employer's bad faith actions.
Among other considerations, employers should assess when to provide notice and consider how they can minimize any negative impact while assisting the individual to find new work. Time on leave will not count as "notice," so the notice will typically be effective when the employee was due to return. For example, employers can assist greatly by ensuring that employment insurance remains continuous by delaying the timing of the termination until the date the employee is ready to return to work.
It should also be remembered that parental leave is available to men as well as women. Employers should be careful not to explicitly or implicitly penalize men for requesting parental leave or discourage them from doing so. When a man takes parental leave, his right to return to the job is exactly the same as for women.
While leaves can be taxing for many employers, they must bear in mind that employment standards legislation and human rights protection has evolved to the point where employees cannot suffer adverse consequences for requesting or taking pregnancy or parental leave. That said, pregnancy and parental leaves should not be viewed as "shields" that protect employees from actions taken by the employer for legitimate business reasons.
Natalie MacDonald and Stuart Rudner are co-founders of Toronto-based boutique employment law firm Rudner MacDonald LLP.