Employee’s right to maternity leave absolute

Lisa Allen was a dental hygienist with Dr. Jeffrey Weaver. While on maternity leave her employment was terminated. Ms. Allen filed a claim under the Ontario Employment Standards Act seeking compensation for this termination.

An employment standards officer investigated the matter but decided not to issue an order to pay. The officer was not satisfied that Ms. Allen had lost her employment because she had exercised her right to take a pregnancy and parental leave pursuant to the act. Ms. Allen brought an application to review the officer’s decision and the Ontario Labour Relations Board heard the matter.

Ms. Allen provided testimony at the hearing with respect to her employment history with Dr. Weaver. She had been hired in October 1997 as the only hygienist in the office and worked four days a week. She advised Dr. Weaver of her pregnancy early in her term, anticipating the need to be off early in the event of complications.

In October or November 1999 she formally told him that her due date was Dec.12, 1999. Dr. Weaver wanted her to work until Dec. 7, 1999, but due to fatigue, her last day of work was Dec. 1, 1999. Prior to taking her leave, she informed Dr. Weaver that she intended to take four months of leave.

During Ms. Allen’s absence, one full-time and two part-time hygienists were hired. The office was also opened five days a week, as opposed to four days that had been the case before Ms. Allen’s leave.

On Jan. 25, 2000, Dr. Weaver contacted Ms. Allen to inquire about her return date. Ms. Allen informed him that she would be returning on April 3, 2000. Dr. Weaver told her that she would be working Wednesdays, Thursdays and Fridays. Ms. Allen inquired about Mondays, her regular working day prior to her leave. Dr. Weaver informed her that a part-time hygienist was working on Mondays.

Ms. Allen was not happy with this new arrangement and met with Dr. Weaver in the office the next day to discuss the scheduling. Ms. Allen reminded him that she was on leave and entitled to return to her old job. Dr. Weaver said that he had two hygienists and it was easier for one to work Mondays.

Subsequent to that meeting, Dr. Weaver called Ms. Allen at home and invited her to a meeting over lunch to discuss this matter further. The meeting took place in a crowded restaurant on March 6, 2000. Again she informed him that she did not want to give up a day. She also asked for training which had been given to the other hygienists while she was on leave. Dr. Weaver denied her request and said that she could learn from others. Ms. Allen requested to extend her leave but Dr. Weaver denied this request because he already had scheduled patients for her return. At the end of the meeting, Dr. Weaver told Ms. Allen to decide by Friday of that week whether she was coming back .

The next day Ms. Allen delivered a letter to Dr. Weaver’s office which confirmed the verbal notice that she would not return on April 3, 2000, but that she would take her full leave and would be returning June 1, 2000. Dr. Weaver tried to contact Ms. Allen by telephone but Ms. Allen declined to talk to him.

On March 10, 2000, Dr. Weaver sent Ms. Allen a letter of termination and relied on her written contract of employment as the basis for giving 30 days’ notice.

Dr. Weaver provided considerably different testimony as to the events leading up to Ms. Allen’s dismissal. It was his position that it was Ms. Allen’s suggestion to only work three days a week. Dr. Weaver offered her Wednesdays, Thursdays and Fridays but Ms. Allen wanted to work Mondays as that day had longer hours.

Dr. Weaver denied her request for longer leave because he had already started scheduling patients for her return in April. He denied that the lunch meeting was hostile but did admit that it was not pleasant. The meeting ended with him asking Ms. Allen to consider his needs and he expected that each would think of the other’s wishes for a day or two, then reach a resolution.

When Ms. Allen dropped off the letter giving notice of the extension of her leave and then did not take his calls, he came to the conclusion that she did not want to work for him anymore. As a result, he sent a letter of termination. Dr. Weaver denied that she was terminated because she requested an extension of her leave. He said Ms. Allen was terminated because she would not accept the proposed schedule .

Upon hearing evidence, the board concluded that Ms. Allen lied when she testified that Dr. Weaver initiated the requirement to work three days a week. At no time did she indicate a willingness to rescind the request and return to the four days a week she previously worked. There was no evidence that Dr. Weaver prevented Ms. Allen from being reinstated to the hours she worked before her leave. Dr. Weaver tried to accommodate her request for three days a week but not the particular days that Ms. Allen wanted.

However the board was satisfied that the decision to terminate Ms. Allen was, at least in part, affected by Ms. Allen’s request to extend her leave. The act provides that an employee’s entitlement to a leave is absolute, including the right to extend the leave, if proper notice is given. Ms. Allen did give proper notice.

Although Dr. Weaver had legitimate reasons to be irritated with Ms. Allen, it was a breach of the act to terminate her if even part of the decision to terminate was for reasons related to the right to take a leave.

As a result of the breach, Ms. Allen was awarded damages for loss of wages of $9,487 and damages for loss of job of $11,665.

For more information:

Allen v. Weaver, Ontario Labour Relations Board, Docket No. 1411-00-ES, Aug 21/01.

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