When an employee is on maternity or disability leave, terminating their position can be especially difficult because of the potential for allegations of discrimination. However, a recent case shows it’s not impossible (especially for employers working under the Canada Labour Code)– but it requires a lot of documentation and evidence.
The facts of the case
When Bell Mobility went through significant downsizing in 2011, the company terminated more than 200 positions. This included eliminating all three performance management coordinator (PMC) roles, one of which Margaret Moday held before she went on maternity leave after nine years with the company.
Moday started her maternity leave on August 21, 2011, and expected to return a year later. On November 3 of the same year she was told her position had been eliminated. The other two PMCs were also informed of their termination on the same day. Moday then complained under the Canadian Labour Code that she was fired as a result of her parental leave.
The relevant rule
The Canadian Labour Code states employers must reinstate employees on maternity leave or, if they can’t reinstate, they must find a comparable role for the individual.
Adjudicator Randi Abramsky dismissed Moday’s wrongful dismissal claim, ruling that the employee’s right to reinstatement after maternity and parental leave does not take complete precedence over an employer’s right to reorganize the workforce.
“If the reason for the termination is unrelated to the fact that the employee was on protected leave, then the fact that the employee was on leave should not be determinative of the issue,” says employment law
yer Sean Bawden. “The fact that an employee was on leave should be a factor to consider in any wrongful dismissal analysis, but it is not a trump card guaranteeing anyone that they can never be fired.”
The adjudicator found in the employer’s favour because the employer had prepared comprehensive evidence to prove that the lay-off was not related to the employee taking maternity leave.
HR practitioners should note that this matter involves a hearing under the Canada Labour Code, which only covers companies in federally-regulated industries, including radio stations and banks. It does not cover the majority of companies in Canada that are covered under the provincial labour codes.
Companies that don’t collect adequate evidence can find themselves in hot water. Even when a company is intending to shut down a branch of operations, terminating a pregnant employee can be problematic if they do not have their paperwork in order. Last year software company BNA Smart Payment Systems had to compensate its VP of sales, who was told not to come back to the company the day after telling the company president about her pregnancy.
The British Columbia Human Rights Tribunal found that while there was evidence the company was struggling financially, because BNA did not have any independent evidence to show they made the decision to terminate the employee before she told them she was pregnant, the termination was found to be discriminatory and the employee was awarded $11,000.
Bawden says that anyone considering terminating an employee, especially one who is pregnant or on maternity leave, should seek legal advice first.
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