Defining an employee’s ‘position’
Security guard unhappy with relocation after maternity leave
May 27, 2019
A security guard in Toronto was assigned a new position after her maternity leave. Shutterstock/New Africa
By Stuart Rudner
Employees who return to work after a parental leave are entitled to return to the same position. But how is an employee’s “position” defined?
A recent arbitration decision shed some light on that issue after an employee returning from a maternity leave filed a grievance against her employer when she wasn’t returned to the same work site.
In the case of United Food and Commercial Workers International Union, Local 333 and Paragon Protection, Ltd., the arbitrator agreed with previous decisions that confirmed employees don’t necessarily get to return to the exact position they left, but rather to the same employment situation following a parental leave.
Paragon Protection hired an employee in 2013 as a “concierge.” The company provides security for condominium buildings and the employee was licensed as an individual security guard. She worked at one Toronto building site before going on maternity leave in December 2014.
The employee planned to return to work early in October 2015. In August, she called her employer to ask whether she should pick up her uniform at the building site where she worked before beginning her maternity leave or at the company’s head office.
She was told she wasn’t returning to the same work site and to call her boss, who told her that the client was happy with her replacement and the company would find her another work site.
The arbitrator found that the employee was offered two other work assignments at two different sites that would involve the same duties, pay, and work hours. But the employee was upset she wouldn’t be returning to her exact position and work site, and declined the work.
She filed a grievance, saying the company’s decision not to reinstate her to the exact position she had before her maternity leave violated the Employment Standards Act, 2000 and collective agreement. She also argued that her employer discriminated against her under the Human Rights Code, which protects people on various grounds, including gender. Women, for example, cannot face discrimination because they are women and may become pregnant.
The arbitrator determined that at the time the employee was hired, she was aware that Paragon employees move from location to location, and that the employer is able to transfer employees as necessary. The arbitrator found Paragon didn’t violate the Employment Standards Act, the Human Rights Code or the collective agreement. The arbitrator also found that Paragon wasn’t liable for the decision of its client, and dismissed the grievance.
What the decision means for employers and employees
The arbitrator’s decision sheds light on how employers and employees should define “position” and what rights employees have when returning to work from a parental leave. For employers, the ruling offers flexibility. Employees returning to work from a leave don’t necessarily need to return to the exact position, but rather to the same employment situation.
For employees, the ruling clarifies that a parental leave doesn’t guarantee “absolute freedom from change.” Depending on the contract they signed, the collective agreement, or the business or industry practice, an employer may have the right to change an employee’s work site when he returns from a leave.
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Stuart Rudner is the founder of Rudner Law (RudnerLaw.ca
), a firm specializing in Employment Law and Mediation. He can be reached at firstname.lastname@example.org
, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.