Bell hangs up on employee on parental leave (Legal View)

Elimination of performance management co-ordinator’s position had nothing to do with leave and everything to do with restructuring: Adjudicator
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 04/23/2013

The dismissal of a Bell Mobility employee who was on maternity leave was a legitimate business decision and not related to her leave, an adjudicator has ruled.

Margaret Moday was hired by Bell Mobility in April 2000 and worked in a variety of sales, customer service and administrative positions over the next 10 years. In 2009, she became a performance management co-ordinator (PMC), responsible for providing administrative support for team leads.

In early 2011, Bell Mobility eliminated some PMC positions and Moday was left as one of only three remaining PMCs at the company across Canada. She was also pregnant and officially began maternity leave on Aug. 21, 2011.

Moday planned to take the full 12 months off and expected to return to work when her parental leave elapsed on Aug. 21, 2012.

Worker downsized during maternity leave

However, in the fall of 2011, Bell Mobility underwent a large downsizing, eliminating more than 200 positions. The positions included the three remaining PMCs, including Moday. The duties that were handled by PMCs were discontinued, automated or reassigned to other positions.

Bell Mobility sent a termination letter on Nov. 3, 2011, to inform Moday her position was being eliminated as of Feb. 3, 2012, due to changes at the organization.

She was to receive a severance package of five-and-a-half months’ pay and three months’ salary and benefit continuance starting on that date. Moday would also have access to Bell Mobility’s career transition support service.

Choice of 2 options

Moday was also given a choice of two options: remain on leave and receive her severance package and outplacement services when the leave expired in August 2012, or end her leave immediately, return to work and receive the severance package on Feb. 3.

Moday didn’t make a decision and Bell Mobility treated her parental leave as continuing until Aug. 21, 2012.

The company emailed her about 700 job postings during her maternity and parental leave. She applied for two of the positions but was unsuccessful.

Moday felt she was capable of doing at least one of the jobs and filed a complaint of unjust dismissal under the Canada Labour Code, claiming she wasn’t offered her old job back or a comparable position, as required under the code.

She also claimed her dismissal was related to her maternity leave.

Bell Mobility denied Moday’s maternity leave had anything to do with the termination of her employment, stating her position was eliminated due to “corporate restructuring and significant downsizing” which made the company unable to place her in a comparable position.

Employee looking for reinstatement under code

The adjudicator noted Moday didn’t dispute that Bell Mobility implemented a restructuring that eliminated her PMC position.

However, she argued the code stated employees on maternity leave “shall” be reinstated to their former position or a comparable position when the leave is up — terminology that made reinstatement mandatory.

The code also precluded a complaint of unjust dismissal if the worker was “laid off because of a lack of work or because of the discontinuance of a function,” found the adjudicator.

Bell Mobility had eliminated all three remaining PMC positions, which supported the company’s position that Moday’s maternity leave wasn’t a factor in her termination and there was no comparable position to which she could be returned.

Employer has right to reorganize: Adjudicator

The code, like other minimum standards legislation, could not be contracted out of unless better benefits could be implemented by employers, found the adjudicator.

However, the right to reinstatement after maternity and parental leave outlined in the code does not take precedence over other clauses in the code, such as an employer’s right to reorganize the workplace, said the adjudicator.

Moday argued the right to reinstatement was “an absolute right” backed up by section 168 of the code, which stated part III of the code containing the reinstatement after maternity leave clause applied notwithstanding any other laws — but this would create “a startling proposition,” said the adjudicator.

“This would place relatively young male or female employees off on parental leave in a vastly superior position to any other employee during a downsizing, including very senior workers or employees off on sick or disability leave,” said the adjudicator.

“Much clearer language than section 168 would be needed to require that.”

Though Moday was never offered a comparable position at the end of her maternity and parental leave, this wasn’t necessary as there was a bona fide elimination of her position by Bell Mobility and a discontinuance of her function, found the adjudicator.

Moday’s complaint was dismissed.

For more information see:

Moday and Bell Mobility Inc., Re, 2013 CarswellNat 393 (Can. Labour Code Adj.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. Visit www.employmentlawtoday.com for more information.

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