Employer decided it was a good time to eliminate employee’s position when she went on pregnancy leave, but had no comparable job for her
An Ontario employer must reinstate an employee and pay her $5,000 after wrongfully dismissing her while she was on maternity leave, the Ontario Labour Relations Board has ruled.
JYSK is a retail store chain based in British Columbia but with stores across Canada. The company hired Melanie Lamoureux in 2007 to be an English/French translator to support its advertising and marketing department, translate corporate documents, and support JYSK’s Quebec operations. Though Lamoureux worked in JYSK’s Mississauga, Ont., office, her manager in the marketing department was based in Vancouver.
Lamoureux was the only full-time employee in the Mississauga office, with only part-timers and two regional managers who travelled a lot based there. She worked long hours and expressed concern about being there alone after hours, so she started working from home in early 2012.
In the fall of 2012, Lamoureux advised her manager that she was pregnant and her due date would be in the spring of 2013. She indicated her intention to take maternity and parental leave available and return to work at the end of it. The manager agreed, as Lamoureux was considered a valuable and hard-working employee.
Shortly before Lamoureux went on leave, JYSK decided to permanently fill her position with an employee based in B.C. The manager had wanted to have the translator located at her Vancouver office, since about 70 per cent of the translator’s work was for advertising department material and the department was in Vancouver. The manager felt this would make things more efficient and allow her to monitor the position more directly. There had been no serious discussion to move the position until Lamoureux announced her upcoming maternity leave, at which point the company felt it made sense to make the move with the new hire.
On Jan. 26, 2013, JYSK advertised for a translator position in the Vancouver office. The position would replace the advertising aspects of Lamoureux’s job, and the qualifications on the job posting included desktop publishing skills that Lamoureux didn’t have. Lamoureux — who had not yet gone on leave — was aware of the new position but believed the new hire was meant to replace her just for the duration of her leave.
JYSK intended to find another position in Mississauga for Lamoureux, so it didn’t advise her of the decision to move her position, nor did it consider offering her the position in B.C.
On Feb. 6, 2013, an HR employee emailed Lamoureux’s manager to confirm Lamoureux’s return-to-work date. The manager forwarded the email to Lamoureux without mentioning anything about her position in Ontario having been eliminated.
Position was eliminated shortly before pregnancy leave started
The manager set up a meeting with Lamoureux and an HR representative on March 1, where she told Lamoureux that her position no longer existed in Ontario and JYSK would try to find another one for her. Lamoureux was initially excited about the opportunity for a change and in additional exchanges over the next little while, she indicated she would like to work from 7:30 a.m. to 4 p.m. — the same hours as before her leave — with the same pay. However, JYSK only had part-time retail store positions at a lower salary available in Ontario. Lamoureux said these positions were unacceptable and, though JYSK acknowledged the available jobs were not comparable to her job before her leave, it terminated her employment effective March 11.
Lamoureux filed a complaint, accusing JYSK of violating the Ontario Employment Standards Act by failing to reinstate her to her employment following a protected leave. JYSK argued the move of Lamoureux’s position was a legitimate change in its business operation that it needed to do and it tried to find other work for her, but there was nothing comparable and the Mississauga office was closing. It aruged the Employment Standards Act, 2000, stated a returning employee could not demand a former position that was affected by business changes that are required solely by the requirements of the business.
The board found that the crux of JYSK’s argument was that an employee who takes pregnancy leave is to be treated the same way as if she had not taken a leave, and going on leave shouldn’t shield an employee from the consequences of legitimate restructuring of the business. However, the board found this wasn’t the circumstances here: Though the manager desired to have the translation work done in the Vancouver office, it hadn’t been seriously discussed. Had there been a “serious plan” in place to implement the move of Lamoureux’s position, things might have been different. But the decision to make the move was brought about by Lamoureux taking pregnancy leave; had she not gotten pregnant, the move wouldn’t have been made when it was, said the board.
“The purpose of the leave provisions of the act is to protect employees who decide to take leaves,” said the board. “In my view, they ought not to be interpreted to allow employers to use the leave as an opportunity to eliminate the position of the person on the leave in circumstances like those before me.”
The board found JYSK violated the act when it transferred Lamoureux’s position when she was on leave and also when it failed to offer the moved position to her. Even if the company didn’t believe Lamoureux would accept the position in B.C., it had no basis for coming to that conclusion without asking her; nor was there any indication it even considered offering her the job, said the board.
The board felt reinstatement would be an appropriate remedy as the employment relationship could probably be saved — Lamoureux worked from home with limited contact with her manager and was considered a good worker — but Lamoureux didn’t make a claim for reinstatement nor did JYSK make an offer of reinstatement at any time. As a result, JYSK was ordered to pay Lamoureux compensation for lost wages and benefits from her date of termination, as well as lost employment insurance benefits Lamoureux would have received during a second pregnancy had she not been terminated by JYSK. In addition, the board added $5,000 as compensation for emotional distress caused by the company’s attempt to give her the “run around” that exacerbated the harm to Lamoureux.
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