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It is a popular misconception in Canada that women cannot be fired during or immediately following maternity leave. (Getty Images/iStockphoto)
It is a popular misconception in Canada that women cannot be fired during or immediately following maternity leave. (Getty Images/iStockphoto)

leadership lab

Do you have job security while on maternity leave? Add to ...

This week’s series of Leadership labs is being published in conjunction with International Women’s Day.

When Melissa Morra began her maternity leave in 2015, her sole focus was caring for her newborn daughter, Cecilia. Her company, which had hired her three years prior, offered a “significant” top-up to the employment-insurance benefits all Canadian women are entitled to receive while on maternity leave, affording her time to bond with her child without worrying about making ends meet.

A month before she was scheduled to take leave, however, her company was acquired, and co-workers began whispering rumours of the new owners’ intent to make some staffing changes. Six weeks after giving birth, Ms. Morra got the call, informing her that she was going to be officially terminated the day she returned from leave.

It is a popular misconception in Canada that women cannot be fired during or immediately following maternity leave. While there are laws and restrictions that protect them from being terminated for reasons directly related to their leave, those protections do not guarantee that every Canadian woman’s job will be waiting for them upon their return. As many parents have discovered, if their place of work undergoes major changes, such as restructuring or downsizing, while they’re off caring for a baby, they may not have a job to return to. Being on maternity or paternity leave offers no job-protection status in such circumstances.

After Ms. Morra got the call, things began to fall apart.

“Because I was terminated six weeks into my leave, I didn’t receive that top-up,” she said, adding that her severance package paid out less than what she was expecting to receive during her leave.

“And I can’t go on EI,” she added, explaining that there’s a 45-week maximum on receiving benefits, which most on maternity leave collect and pay back after returning to work. “I had to pay it back, and because I had used all my EI benefits while I was on maternity leave, even though I wasn’t employed at the end of my leave, I wasn’t eligible to go on EI.”

On top of worrying about mounting debt and caring for her newborn, Ms. Morra was now forced back into the job market, where she felt she was at a significant disadvantage. “I hadn’t been in the workplace, I didn’t have those examples off the top of my head of things I’d accomplished. It was hard to feel confident in an interview when I hadn’t been in that environment for a year,” she said.

Ms. Morra eventually began consulting part-time, which she continues to this day, though the debt from her maternity leave still remains. “We’re not there yet, but almost two years later I’m starting to see the light at the end of the tunnel,” she said.

In spite of all that she’s been through, however, Ms. Morra is the first to admit that every action taken by her employer was perfectly legal.

The Canada Labour Code, as well as the Human Rights Code of Ontario and the Employment Standards Act of Ontario, each guarantee job protection for Canadian women on maternity leave.

“An employee who takes a pregnancy leave is entitled to the same position they held before the leave began, or a comparable one if the old position no longer exists,” said Janet Deline, a spokeswoman for the Ontario Ministry of Labour. Most provinces, however, grant exceptions to account for major changes to the business, such as staffing restructuring or downsizing. Ms. Deline explains that termination must be “completely unrelated to the leave,” and that employers are still required to provide standard notice and severance pay.

“A lot can happen in a business in a year, so we need to have an exception like this to deal with business realities,” said Karen Sargeant, a partner in Fasken Martineau’s Labour, Employment and Human Rights Group. “If the business changed while they were off, they should be treated the same way they would have had they not been off. They shouldn’t get any extra protections that the person sitting next to them didn’t get just because they’re on leave.”

While this exception was put in place to keep employees on leave on an equal playing field with their co-workers, however, some argue that it has ultimately put them at a disadvantage.

“I think employers are abusing the exception in ways that it was never intended to be used,” said Daniel Lublin, a partner at Whitten & Lublin. Mr. Lublin estimates that approximately 10 per cent of the “thousands” of cases the employment-law firm reviews each year is in some way centred on a failure to reinstate following leave. “This very narrow exception is being blown open,” he adds.

Kelly Wagner, for one, was a star employee for TD Insurance for more than a decade. After landing a job through a temp agency in 2003, she was hired full time in 2004 and promoted with remarkable consistency every year that followed. Ms. Wagner received awards for her work, led the company’s social committee, championed many of its corporate social responsibility efforts and was a finalist for a position in management, though she ultimately didn’t get the job.

Then, in 2010, she temporarily switched roles to cover for an employee in another department who was on maternity leave, before taking a leave herself in 2011.

“I returned from my maternity leave pregnant again, so I had to take another maternity leave about seven months after I had returned,” she said. “I went on leave again and had my second child, and it was about three months into that maternity leave that I got the call.”

During that call, Ms. Wagner was informed that her department was being reorganized, some staff had to be let go and the criteria for determining who got to keep their jobs were based on the previous two years of employee reviews and promotions. Since she had volunteered to fill in for a staff member in another department before taking her initial leave, her job suddenly depended on her performance during a narrow seven-month window.

“I was at a significant disadvantage compared with my peers,” Ms. Wagner said. “I was a really good employee and my name should not have been on the list.”

Ms. Wagner was informed that she would be terminated the day she returned from leave, but when she began asking the company to forward her earlier performance reviews they quickly changed their tone and offered her another position.

TD Insurance spokesperson Crystal Jongeward explained that for privacy reasons the company cannot comment on specific employees, adding that TD Insurance tries to find another role for those impacted by restructuring whenever possible, especially those on maternity leave. “If that is not possible, we provide support such as a severance package, external job search assistance and career counselling,” she said.

No longer interested in working for TD Insurance, however, Ms. Wagner turned down the job, but the offer itself limited her ability to take legal action.

“The employer wants you to find another job quickly, because it reduces the damages,” Mr. Lublin explained. “If someone is offered a job really fast after being terminated, she’s unable to claim the damages that she would have suffered had she not found a job so quickly.”

In fact, Mr. Lublin says there are a variety of physical, emotional and financial factors that discourage women from taking their employers to court after being terminated while on or immediately following leave. Those who do, however, often find themselves in a lengthy and costly battle.

Four months into her leave from a major telecommunications provider, one Canadian woman – who would only speak to The Globe on the condition of anonymity – said that she was caring for a newborn who was suffering from an underdeveloped esophagus when she got the dreaded call. “It really set me off into quite a tailspin,” she said. “I spiralled into depression as a result.”

She said she was “shocked” both by the timing of her termination and in her company’s claim that it couldn’t find a similar position for her to return to. She ultimately filed a lawsuit, which took three years and approximately $60,000 before an undisclosed settlement was made out of court. As a result, the woman is unable to tell her story publicly, and her employer never had to admit to any wrongdoing.

“There is no such thing as job security on maternity leave,” she concludes, now that the legal battles are behind her. “I was a prime example of that.”

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