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Employment & Labour

Is an employee entitled to their pre-leave job when they return?

By Stuart Rudner 

Employers are often challenged with return-to-work cases. It can be difficult for employers to balance their right to a productive workplace with a worker’s fundamental right to equality.

So what happens when – during an employee’s leave – the temporary replacement is simply a better fit in the position? Is the returning employee entitled to his or her pre-leave job back?

We often see this situation, where an employer discovers that a job can be performed more efficiently than it had been, or a team functions better with the replacement than the incumbent. But what can the employer do? Don’t they have to bring the employee on leave back?

Generally speaking, the answer is yes – an employee must be returned to the position they had when their leave began. But according to a recently arbitrated case, where the employment contract makes clear that there is flexibility with respect to work conditions, an employee is not entitled to the same exact pre-leave position – even if that job still exists. A comparable position is sufficient.

The case

The grievor worked as a concierge at a condo building for an employer who had many clients (other condo buildings). The grievor took maternity and parental leave under the Employment Standards Act, 2000 (ESA). During discussions regarding her return to work, the building operator of her pre-leave work site asked her not to return because he was pleased with the replacement worker and wanted to avoid turnover at the site.

The grievor’s employer offered her two concierge positions at other buildings, which positions provided for comparable duties, responsibilities, hours of work, wages, and commuting distance. The grievor refused and argued that the employer’s failure to return her to the building she previously worked at violated the ESA because the position “still exists.”

Her argument was based on the fact that the ESA provides that an employee who takes a statutorily-protected leave under it is entitled to be reinstated to “the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.”

The arbitrator, however, found that there had been no violation of the ESA. He took into consideration the industry and the grievor’s terms of employment, the latter of which made it clear she wanted “mobile” work, would have taken any shift assigned, and that she could be removed from a work site if a client made such written request. Furthermore, the collective agreement governing her employment contemplated transfers from one location to another.

The arbitrator found that the duties, responsibilities, wages, benefits, and conditions of work were the same at all three locations. Given that the employer had the right to transfer her to a different building at any time, denying that right would mean that she would have been placed in a better position than other employees. As such, there was no violation of the ESA in this case.

What this means for employers

The general rule is that employees are entitled to be returned to the same position they held at the time they commenced their leave. However, where the terms or nature of employment are such that employees can be transferred between positions (ie. from one building to another but in the same role), employers do not have to return employees to the exact same place they worked before the leave. “Position” is defined more broadly in such circumstances.

The employer must be sure that the duties and responsibilities performed, wages and benefits paid, hours, and conditions of work are all the same or comparable to the original position.

To this end, it is wise for employers to seek the assistance of seasoned employment lawyers. If employers do not satisfy such requirements, the employer risks violation of the ESA and the Human Rights Code, as well as a constructive dismissal claim.

What this means for employees

If you are an employee who takes leave under the ESA, you are entitled to be reinstated to your former position, recognizing that “position” may be defined to include the same role at a different location or be given a comparable position. You should consult an employment lawyer to make sure your rights are protected.

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