Across Canada, under provincial employment standards legislation, parents are entitled to job-protected maternity and parental leave. Pursuant to both the BC Employment Standards Act (“ESA”) and Human Rights Code (“Code”), employers must not change an employee’s terms of employment during or as a result of their leave. Employees are entitled to return to their pre-leave positions or a comparable position.
Unfortunately, sometimes complying with this reinstatement obligation is impractical. In BC, a birth parent can take up to 78 combined weeks of maternity and parental leave, which is just under 1.5 years away from work. As many employers know, a lot can change within a company in 1.5 years. By the end of a leave, it may no longer be practicable or practical to return an employee to their previous or comparable position. A recent case underlines how critical it is both to comply with the obligation to reinstate but also to be clear in communicating the employer’s intentions if circumstances have changed.
In LaFleche v. NLFD Auto dba Prince George Ford (No. 2), Ms. LaFleche, a Marketing Manager for a Ford dealership (the “Dealership”), was told during her maternity leave that her duties would be changing upon her return from leave. Prior to her leave, Ms. LaFleche assisted the Dealership in hiring and training a temporary replacement Ms. Callahan to assume her position while she was gone. Ms. Callahan went on to excel in the position and impress the Dealership. As a result, and without consulting Ms. LaFleche, the Dealership decided Ms. Callahan would remain a Marketing Manager after Ms. LaFleche returned to work.
In a meeting with Ms. LaFleche towards the end of her leave, the Dealership’s management told her that Ms. Callahan would be keeping the Marketing Manager position and that Ms. LaFleche’s job duties would be changing. She was not told exactly what would be changing but she inferred that she would not be returning to her original position as Marketing Manager. Ms. LaFleche left the meeting under the impression that her employment had been terminated by the Dealership and shortly thereafter filed a complaint under the Code. Despite reassurances from the Dealership that she had not been terminated and that they wished her to return to work, Ms. LaFleche did not return to work at the end of her leave. The Dealership took the position that she had abandoned her position.
The Tribunal found that the Dealership had discriminated against Ms. LaFleche on the basis of sex and family status. The change in Ms. LaFleche’s job duties, and, by reasonable inference, her removal from her pre-leave position as Marketing Manager, adversely impacted her and her pregnancy and the maternity leave she took as a result of it was a factor in the adverse impact. For the purposes of the Code, pregnancy is a protected characteristic based on sex and also family status.
For the discrimination, the Tribunal awarded Ms. LaFleche, among other things, $12,000 as compensation for injury to dignity, feelings and self-respect and $66,625 in lost wages and benefits (Note: this excluded $3,750 paid to Ms. LaFleche in settlement of her ESA Complaint).
Takeaway for Employers
Both the ESA and the Code prohibit employers from altering an employee’s job duties and position while they are on pregnancy-related leave (i.e. maternity or parental leave). The above case demonstrates the potential risk when an employer fails to manage pregnancy-related leaves with care. To limit exposure to an allegation of discrimination, employers should:
- Ensure that employees away on pregnancy leave return to their original position unless it is absolutely necessary to make a change;
- If possible, consult with the employee prior to the change. An employee may be willing to agree to a compromise or alternative solution. In fact, some employees are looking for reduced hours or other changes in their role;
- If a change is truly one that is unrelated to the taking of the leave (e.g. the employee’s entire department is eliminated) then it is possible to terminate without reinstatement, but the onus of proving no connection to the leave is a heavy one. Where only some positions in a department are eliminated, it is particularly difficult to prove that selecting the employee on leave had nothing to do with the leave;
- Avoid being vague about any proposed change to the returning employee’s role. The main problem in this case was that while Ms. LaFleche was told Ms. Callahan would be Marketing Manager she was not told what her own title and duties would be i.e. the employer failed to clearly communicate what the details of what they presumably considered was a “comparable position” to Ms. Lafleche. In effect a failure to communicate those details was held to entitle Ms. Lafleche to infer she would have a lesser role and quit. If, for example, the Dealership advised that they were expanding their marketing efforts and that both Ms. LaFleche and Ms. Callahan would be Marketing Managers, the outcome may have been different.
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