'You have to think carefully about how you're going to find a truly comparable position'
The BC Human Rights Tribunal has ordered an employer to pay $80,000 in damages for discrimination after it told a worker on maternity leave that it wanted to keep her replacement in her job when the worker returned.
While it was normal for the employer to want to keep the replacement if they were doing a good job, the employer made the situation worse with poor communication, the lack of a comparable position for the worker, and making the worker feel like she was being shown the door, says Melanie Samuels, partner with Singleton Reynolds in Vancouver.
“I guess it's the way you dress it up to ensure that the person at the receiving end is hearing the message: ‘You’re valued, we want you to return, and we've made some alterations to the position or the department and this is what it’s going to look like,’” she says. “I think it’s how you package it.”
Maternity leave replacement
The worker joined NLFD Auto, which operated an auto dealership in Prince George, BC, called Prince George Ford, in 2015. She started in the position of social media manager and was promoted to marketing manager in April 2017, a new position.
The marketing manager job duties weren’t set out in writing, but the worker oversaw and organized internet and event-driven campaigns.
Four months later, a new general manager joined the dealership with a new vision and goals. The dealership’s marketing strategy changed and the worker adjusted her work to meet the new vision.
Around the same time, the worker became pregnant and scheduled her maternity leave to begin in May 2018. The dealership hired someone to cover for her leave, with the worker involved in the hiring decision and training the new employee.
According to the worker, the general manager and the worker both told the replacement employee at the interview that she would share marketing department duties once the worker returned, although how the duties would be divided wasn’t clarified.
The worker went on maternity leave and her expected return date was July 2, 2019.
In September 2018, another new general manager took over and the marketing strategy continued to evolve. The new general manager worked with the worker’s replacement on the new strategy and he was happy with her work.
The worker met with the new general manager and the senior controller of the dealership on Feb. 8, 2019. The general manager said that he and the replacement had found a good marketing strategy together and he wanted to keep the replacement in the marketing manager position. They told the worker that they didn’t have another position to offer her at that time, but they would get back to her at the end of March to discuss her position and duties.
According to the senior controller, they told the worker that the marketing duties would be divided when the worker returned and the exact division would be finalized when she was back.
The worker believed that she was being demoted and she filed a human rights complaint.
Comparable position for returning worker
The trouble for Prince George Ford started when it wanted to keep the replacement employee in the same position without a plan for the returning worker, says Samuels.
“Usually, when you hire for a maternity leave [replacement], you usually hire on the basis that it's a replacement position – you hire with a contract,” she says. “If you don't bring someone back [from maternity leave] to a comparable position, you're always going to be in trouble because a person has a right to come back to a reasonable alternate position.”
Read more: An employer didn’t discriminate against a worker on maternity leave when it eliminated her position and offered her a different one.
The dealership didn’t contact the worker by the end of March. The worker took this to mean that she had been terminated and made comments on the dealership’s Facebook page a couple of months later about getting “fired” while on maternity leave.
The Facebook comments shocked the general manager and the controller and a few days later they were notified of the human rights complaint.
The dealership put itself in a difficult position because it wanted to give the worker a heads-up about her position in advance and seemed to genuinely want to keep her on, but it fell short on communication and the worker felt humiliated, according to Samuels.
Worker never returned
The worker didn’t return to work and contacted the dealership on July 4. The controller insisted that they hadn’t fired her and they hadn’t issued a record of employment (ROE). When the worker asked when she would get an ROE, the controller said after the human rights complaint was finalized.
On Aug. 20, the dealership sent the worker a letter saying that it considered her to have abandoned her employment. Her benefits would be discontinued and she was deemed as no longer an employee. The worker didn’t respond to the letter.
The tribunal noted that pregnancy is a protected characteristic based on sex and, at the meeting, she was told that she was not returning to her marketing manager position. There was no doubt that the new general manager wanted to keep the replacement and at that point the worker’s role was undefined, said the tribunal.
Read more: Changes to the hours of an employee’s position were business-related and would have happened had the employee not gone on maternity leave.
The tribunal found that it was clear that the worker wouldn’t be returning to the same duties and it was unlikely that she would share the marketing manager position since there had been only one since the role was created. This adversely affected the worker and constructively dismissed her, the tribunal said.
“If the employer had downsized or eliminated a department, then then that would have been okay, but her position was still there and they liked her replacement better,” says Samuels.
“If they had found her a comparable equal position, then she might have had an obligation to take that in mitigation, but they didn't communicate to her effectively about what the new position was going to look like, to make it an appealing option.”
In addition, the tribunal disagreed that the worker abandoned her job. It was the dealership who didn’t contact her at the end of March 2019 to clarify her role and the changes to her job. This conveyed to the worker that not only was she removed from her position, but that the dealership wasn’t committed to returning her to work, the tribunal said, noting that the worker could have reached out, but the onus was on the dealership to mitigate the position in which it put the worker.
Changes can’t put worker at disadvantage
Although the dealership was entitled to make legitimate business decisions while the worker was on maternity leave, it couldn’t make changes that left the worker at a disadvantage to other employees who didn’t take a leave, said the tribunal. In this case, the worker would have remained marketing manager had she not taken a leave, making her leave a factor in the changes.
Legitimate workplace changes also didn’t excuse the lack of communication about the worker’s role and the lack of consultation with the worker about changes that had a direct impact on her, the tribunal added.
The tribunal determined that the dealership discriminated against the worker based on sex and family status. Prince George Ford was ordered to pay the worker $12,000 in damages for injury to her dignity, feelings, and self-respect plus $66,625 in lost wages for 7.5 months from her return date to when she would have taken leave for a second pregnancy.
The case emphasizes that employers in similar circumstances who want to keep a maternity leave replacement are legally required to find the employee coming back a comparable position in terms of status, salary, and duties – and good planning is necessary to meet legal obligations to the returning employee, says Samuels.
“It's a very tricky place for an employer to be – it happens all the time, where the employer realizes maybe the person who's taken the leave isn't as good as they thought they were and they find someone better,” adds Samuels. “It's really hard to bring a person back from maternity leave and it’s a common thing to like the replacement better – but this is what's going to happen if you do that and that you have to think really hard and carefully about how you're going to find a truly comparable position.
See LaFleche v. NLFD Auto dba Prince George Ford (No. 2), 2022 BCHRT 88.
