Workplace Equality: When Is It Legal To Terminate An Employee On Parental Leave?

It is undeniable that employers must not discriminate against employees because of pregnancy parental leave. That being said, sometimes legitimate business reasons require an employer to reorganize their work force. In such circumstances, must an employer protect an employee who is pregnant or on parental leave when making decisions about how to downsize?

According to a recent Canada Labour Arbitration decision, the answer is a resounding “No” – where there is sufficient documentation and evidence to show that lay-off decisions were made in good faith.

The Canada Labour Code states that every employee who takes parental or maternity leave is entitled to reinstatement in their former position upon their return to work.  If, for any valid reason, reinstatement is not possible, every employee is entitled to comparable employment with the same wages and benefits. Similar provisions exist in BC’s Employment Standards Act.

When Bell Mobility underwent a large downsizing in the fall of 2011, the company terminated more than 200 positions.  Ms. Margaret Moday, one of three “Performance Management Coordinators” with Bell, was on maternity leave.  Ms. Moday was informed by telephone that her position had been eliminated. Her two colleagues were also informed on the same day. Ms. Moday was given a severance package, access to career transition support and was encouraged to apply to other positions within the company.

Ms. Moday filed a complaint for unjust dismissal, stating that her termination was related to her maternity leave, and she had been denied her right to reinstatement.

The adjudicator found that while an employer’s behaviour must be carefully scrutinized to ensure its actions are not a sham to deprive the complainant of her statutory rights, the right to reinstatement following maternity leave is not absolute. To literally interpret the law as requiring reinstatement would effectively grant parents on protected leave immunity from termination under any circumstances and perhaps trumping senior employees and employees on disability leave for retention.

However, once an employee makes a complaint that they have been terminated on the basis of discrimination, the onus is still on the employer to establish that the employee was terminated for legitimate business reasons.  Anyone who is considering terminating an employee, especially one who is pregnant or on parental leave, should seek legal advice first.

Last year, the BC Human Rights Tribunal found that BNA Smart Payment Systems terminated its Vice President of Sales – Western Canada because she was pregnant. As a result, BNA was ordered to compensate its employee for loss of wages and injury to dignity, feelings and self-respect. BNA dismissed its employee one day after she gave notice she was pregnant and intending to take maternity leave.

BNA argued that it was planning to shut down its operations in British Columbia and that it was the intention of the company to terminate its VP anyway.  However, the Tribunal found that BNA did not provide any corroborative documentary evidence, including internal memoranda or other communications regarding its intention to terminate its employee, prior to her announcement.  Additionally, BNA’s VP was not privy to any discussions regarding the viability of the business in BC, and was given no forewarning that her job was in jeopardy.

Alfred Kempf can be reached at (250)869-1215 or [email protected]

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