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Job-protected leave not a guarantee of job security

Employers have some leeway in making decisions when workers are on leave

By Jeffrey R. Smith

When someone decides to have a baby, there are many considerations to make, including how raising a child will fit into both the personal and professional lives of the parents.

Before it even gets to that, the mother has to deal with the physical state of being pregnant and having the baby. After that, the mother — and often the father — have to incorporate caring for the baby in the crucial early stages of life into their own lives, usually by taking a leave of absence from work.

In Canada, women get 17 weeks of maternity leave around the birth of a baby to allow recovery from the physical ordeal of giving birth. After that, they can take parental leave — splitting it with a spouse if desired — giving a total leave of one year, with a few variations among jurisdictions.

Legislation protects the jobs of workers on such leave and entitles them to get their job back — or be placed in a comparable job — when the leave expires. Also, a portion of their pay is covered by employment insurance (EI) and some employers choose to top up that amount as a benefit so employees receive their full salary, or at least a large portion of it, while they’re at home caring for their new arrival.

But job-protected leave doesn’t always mean the employer absolutely has to keep the worker employed until she returns. A year can be a long time, and a lot of things can happen. There are circumstances where an employer can terminate the employment of an employee on maternity or parental leave. It just better be careful that those circumstances apply. Very careful.

In the fall of 2011, Bell Mobility underwent a restructuring in which it eliminated more than 200 positions, including all remaining performance management co-ordinators (PMCs). All the tasks PMCs performed were either eliminated, automated or absorbed into other positions.

However, one of the PMCs was on maternity and parental leave until August 2012. Bell Mobility informed her of her termination effective Feb. 3, 2012, and gave her the option of ending her leave then and receiving her severance package — five-and-a-half months’ salary plus three months’ continuation of salary and benefits — or remain on leave and collect the package when the leave expired. The employee chose neither and sued for unjust dismissal, claiming she was entitled to her job or a comparable one when she came back from leave.

The adjudicator disagreed, finding Bell Mobility’s elimination of the position was part of a legitimate business restructuring and the reinstatement rights after parental leave under the code didn’t supersede Bell’s rights to manage and organize its workforce and business.































































































































































































































































As long as the termination was made in good faith — which seemed evident with the severance package and the choice the employee was given as to when to take it — Bell Mobility was entitled to make the move. (Moday and Bell Mobility Inc., Re, 2013 CarswellNat 393 (Can. Labour Code Adj.)

So while employees on maternity and parental leave — and several other types of job-protected leave — are legally entitled to some job protection, it’s not necessarily a guarantee they are safe from some of the normal business factors that can lead to job cuts.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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