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Can an employee be dismissed during or immediately after a leave?

Employers should be well-prepared to defend their decision to terminate an employee
employment law
Leaves are not a “magic shield.” If the dismissal is entirely unrelated to the leave, there will be no breach of an employee’s rights.Shutterstock

By Brittany Taylor and Stuart Rudner

Yet another common misconception when it comes to employment law: You cannot dismiss an employee on leave (sick, pregnancy and parental or other), or shortly after he returns to work. The reality is that it is unlawful to dismiss an employee because he is going to take, is taking, or has taken a leave.

But leaves are not a “magic shield.” If the dismissal is entirely unrelated to the leave, there will be no breach of an employee’s rights. An example is when an entire department is eliminated and one member of that department is on medical (or other) leave — she has no more job protection than any of her colleagues.

In this context, it is the reason for dismissal that is critical. A dismissal during or shortly after a return from leave creates a presumption (not legal but logical) that the two were connected. It just looks bad.

Practically speaking, the employer will have to prove that the dismissal was entirely unrelated to the leave. It does not have to prove it had just cause for dismissal, but will have to satisfy a trier of fact that there were reasons for the dismissal that had nothing to do with the leave. In many cases, they will be able to do so — for example, by demonstrating a position was eliminated. We have helped many clients to do so. But if the employee who took a leave is the only one affected, it may not be easy to justify the dismissal.

It is critical to remember that discrimination does not have to be “all or nothing.” If even one of the reasons behind the employer’s decision to dismiss the employee is connected to the employee’s disability, discrimination has occurred — even if the primary reason behind the employer’s decision was entirely reasonable.

As an example, if the employee had a lengthy history of performance and behavioural concerns, there might be a strong business reason to let him go. But if a medical leave was the “last straw” that caused the organization to do so, that would be a breach of his rights.

It is also critical to remember that cases are not decided based on the truth, because a judge has no way of knowing exactly what happened. Cases are decided based on evidence. The leave may genuinely not have had anything to do with the dismissal. But the question is whether a trier of fact will believe that to be the case, on a balance of probabilities. Or will they conclude that the leave was, at least, part of the reason the organization chose to dismiss?

The timing of the dismissal is one factor, but it is open to the employer to show that the leave was not a factor in the decision to dismiss.

This was the case in Mou v MHPM Project Leaders, where the employee alleged that a number of disability-related absences were a key factor in the employer’s decision to terminate her employment. The employee was an intermediate project manager who, over the course of one year, had taken a total of 107 hours of sick time and unpaid leave. Towards the end of the year, the employer met with the employee to discuss her absences and ask if she needed any support. The employee advised the employer that the absences were all isolated incidents and asked that they not be treated as an ongoing problem.

A few months later, the employer terminated the employee’s employment, advising her that there was insufficient work for her. The employee clearly did not believe this explanation and felt that, based on the short timeframe between her meeting with the employer in December and her dismissal in February, she had been dismissed because of her absences. She commenced an application alleging discrimination on the basis of disability.

The Ontario Human Rights Tribunal agreed with the employee that “the temporal connection between these two events is sufficient to require an explanation from the respondent.” Ultimately, however, the tribunal accepted the evidence of the employer that the reason for her dismissal was related entirely to the shortage of work available.

It was clear that the dismissal was directly related to the end of a particular project which also impacted other employees, and the employee’s role was not filled after her departure. Further, the employer clearly considered whether there were other projects available to which the employee could be transferred before concluding that dismissal was the only option. Finally, there was evidence to suggest a general slowdown in the real estate market in 2013 and 2014 which directly impacted the workflow of the employer.

The tribunal’s decision in Mou is an excellent example of an employer that carefully documented the decision-making process leading up to dismissal, and was therefore able to rebut the presumption of discrimination that may have arisen simply due to the lack of time between the disability-related absences and the dismissal.

Similarly, we have been involved in situations where employees were dismissed shortly after going on leave, or announcing they were pregnant, or in other circumstances where it seems like the dismissal was in breach of human rights legislation. Where the employer had documentary evidence to show that the decision to dismiss was made before the leave, or before it knew of the pregnancy, for entirely unrelated reasons, it was able to avoid liability.

Key takeaways

It is not unlawful to dismiss an employee on leave. However, the timing of dismissal can make it appear that the taking of a leave was a reason for dismissal. Employers should be prepared to defend their decision to terminate an employee where any concern exists that there could be a perceived link between the employee’s disability and their dismissal.

Brittany A. Taylor is an associate at Rudner Law in Toronto.

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Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in Employment Law and Mediation. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.
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