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Employment & Labour

Number of pregnancy leave demotion cases increasing

In spite of the fact that employment legislation surrounding pregnancy and parental leave is well-established, situations where a parent’s position has changed or been terminated while on leave are on the rise, says Toronto lawyer Kevin Fisher.

“I’ve seen a marked increase in the number of people consulting me in this area. That’s what I’ve found surprising – you would think that, as these statutes have been around for a long time, that employers would know and understand their obligations. And it may be that they still do know and understand their obligations, it’s just that they are more willing to push the envelope,” says Fisher, litigation partner with Basman Smith LLP.

Although the Employment Standards Act, 2000 provides that an employer is required to reinstate an employee to their most recent position or a comparable position following leave, the provision does not apply if “the employment of the employee is ended solely for reasons unrelated to the leave.” The Canadian Labour Code, says Fisher, does not contain the same provision but there have been cases allowing for similar considerations but the onus is on the employer to establish these circumstances.

While minor changes to a prior role may constitute a comparable position, “if they terminate someone on a pregnancy leave on the basis that the whole department is being made redundant – that might comply with the act, but not if they simply re-designate a role or terminate similar roles. That’s not what that statute allows, there is still an obligation to reinstate to a comparable role if one exists or the business continues.” says Fisher.

“The reason that it’s significant is that I think a number of employers are thinking that they can terminate employees on leave because they have decided to eliminate a role or have let go other employees during the leave which does not comply with their obligations under these statutes,” adds Fisher, who says he is currently seeing cases under both statutes, involving both small and large companies.

“Some employers think they can get away with it and probably are, because of the current labour market,” says Fisher.

While employers may try to argue that the employee had a duty to mitigate by taking the lesser position, Fisher says “the onus would be on the employer who is not providing the returning person with the position they had before, to establish that what they are offering is comparable.”

“You’ve got to give them a comparable position. I’ve got a case where it’s very clear to me that it’s a demotion. And the employer is still trying to maintain the position that it’s not, but that puts all the pressure back on the person who’s returning who usually doesn’t have income to litigate that issue or pursue it under one of the statutes,” he says.

Although tribunals can reinstate a person under the Employment Standards Act, Fisher says the employee may not receive proper compensation under common law. Similarly, adjudicators under the Canada Labour Code are limited by the statute as to their jurisdiction.

As for employees returning from leave who may be facing this situation, Fisher suggests that they learn their rights – and be careful not to accept a termination or demotion.

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