The back-to-work adjustment

Recent legal cases show parents returning from mat leave can’t be penalized, but that’s not a blank cheque for workers to dictate terms of employment

Employers have some very clear obligations to meet when a worker returns from maternity or parental leave. According to a fact sheet published by the Ontario government, in most cases the worker must be given her job back at the end of the leave or a comparable job if it no longer exists.

The worker must also receive the same wage or, if wages for the job have gone up during her time off or if she would have received a raise had she been working, then the employer must pay her the higher wage.

The only time an employer would not have to reinstate the worker would be if she was dismissed for legitimate reasons completely unrelated to the maternity or parental leave. In short, the worker cannot be penalized for having taken maternity leave. Courts and arbitrators across the country have dealt with a number of cases where employers didn’t follow the rules when a worker came back.

In 2005, a Manitoba Arbitration Board chided the Winnipeg Sun for not giving a salesperson all her accounts back. Tina Mancusi worked in the newspaper’s advertising department, focusing on auto sales. In late 2004, when she returned from maternity leave, she was given “after-market auto,” a completely different sales area. She tried it out for a couple of months but it didn’t generate much revenue and she had to deal with some angry clients a previous salesperson had upset.

The employer took the position that Mancusi was an accounts executive before and after her maternity leave, that the potential value of her new accounts exceeded her old ones and that it would pay any difference in income.

The arbitrator noted that there is more to a job than wages and benefits. In considering the protection given a worker returning from maternity leave not only do wages and benefits, but also status, responsibility and working conditions, must be roughly similar for positions to be considered comparable. The board said Mancusi’s old accounts should be returned to her, and she was entitled to the commissions they generated from the time she returned to work to the date of its ruling.

But having a baby is not a blank cheque for a worker to dictate the terms of employment. In Corey v. Dell Chemists (1975) Ltd., a 2006 ruling, the Ontario Superior Court of Justice awarded 15 months’ pay to a bookkeeper who had been constructively dismissed after the employer unilaterally changed her hours of work when she returned to work after having a baby.

The employer wanted Annette Corey to start at 8 a.m., but she didn’t want to come in until 9 a.m. because it would disrupt her baby’s sleep schedule. Justice John Cavarzan of the Ontario Superior Court of Justice was careful to say that the fact she had a child was incidental to her successful claim of constructive dismissal, and the decision should not be viewed as one setting a precedent for parents to start dictating their hours of work.

“It was a simple case of unilateral alteration of the essential terms of an oral contract of employment,” said Justice Cavarzan. “The fact that those terms were generated by the employee’s wish to work limited hours because she wanted to spend more time at home with her child is incidental…it is wishful thinking to suggest that employees can now invoke child-care responsibilities as a reason for not accommodating reasonable changes.”

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