30th Sep 2012
Author: Daniel A. Lublin
What are you rights when it comes to a pregnancy and parental leave? Recently, I received an e-mail from a Metro reader asking this question. In the correspondence, she explained that after returning from maternity leave, her employer informed her that the company had restructured during her absence, and as a result, she would now have to accept a different job than she previously held. The new job, she noted, was a significant demotion in terms of status and responsibilities. Yet, when she complained, she was told that she either had to accept it or resign.
Is this situation legal; does she have any rights and can she get compensation, she asked? Being displaced following one’s maternity leave can be illegal under the Ontario Employment Standards Act, 2000 (“ESA”). The ESA states that employees are entitled to an absence for a pregnancy and/or parental leave. And at the end of the leave, the employee should be reinstated to the position most recently held, if it still exists, or to a comparable position, if the old position no longer exists. When returning, the employee should also receive the same rate of pay that she most recently earned or an increased rate if it rose during the time of her absence.
Many companies reorganize while employees are off on a pregnancy or parental leave and claim the position was eliminated. However, if the employee’s job functions still exist in the workplace, the returning employee should be given those functions. In some cases, employers can argue that an employee was terminated for reasons unrelated to the leave of absence. If this can be proven, the company will be free from liability. However, in my experience, it is usually an uphill battle for employers to succeed with this argument.
Employees who take pregnancy or parental leave are also protected from what is phrased a “sham reinstatement” where the reinstatement lasts for a short period following the leave and then the employee is terminated. Six months is usually a sufficient period of reinstatement.
If the employer is found to have violated the ESA’s pregnancy and parental leave provisions, the employee may be entitled to compensation for all lost wages up to the time the Ministry of Labour hears the complaint, which is often a period of four to six months. Afterwards, the employee can receive: compensation for the lost job, which may amount to as much as six months’ pay or more; damages for mental suffering; and reinstatement to the former position, in limited cases.
In addition to the employee’s ESA rights, there may also be a human rights claim — as well as a wrongful dismissal claim — if the employee was fired or transferred because of taking a pregnancy or parental leave.