Maternity leave doesn’t count when it comes to notice periods

When and how should employers provide workers on maternity or parental leave with notice that their employment will be terminated?

Stuart Rudner
Dismissing a woman who is pregnant, or is returning from maternity or parental leave, is a minefield. Any suggestion the pregnancy, or the taking of leave, is the reason, or even part of the reason, for the dismissal will result in a finding of fault on the part of the employer. Even where the decision to dismiss was made for perfectly legitimate and defensible reasons, the employee will almost certainly take some sort of action against the employer.

Most employers know that employment standards legislation (in most jurisdictions) requires that at the end of pregnancy or parental leave, the employee be put back into the same position they held when the leave commenced. If, and only if, that position no longer exists, then the employer must offer a “comparable” position. If there is truly no comparable position, then the employer may be relieved of the obligation to continue employing the individual in question.

One issue that arises is when notice should be given if the employer is not going to be in a position to have the employee return. In other words, if the individual’s previous position no longer exists (and I mean really no longer exists — employers cannot avoid obligations by simply giving the position a new title), and if there is no comparable position, when and how should employers provide them with notice that their employment will be terminated?

Typically, employers in this situation will want to provide the employee with as much notice as possible. Once they know for sure there will be no job for the employee to return to, they are inclined to advise them of this fact. Tactically, this is wise as it avoids the possibility of a scenario where the employee calls to advise of her return date, only to have the employer say, “Sorry. We don’t have any room for you.” Doing so makes it appear as though the employer was hoping she would choose not to return, but once it became clear she intended to, the company is avoiding that by firing her. It is much better to be proactive.

Assuming the employer gives the employee notice during her period of leave, when is that notice effective? Some employers have attempted to be clever by having the leave period double as the notice period. In other words, they might determine the employee is entitled to six months’ notice of termination. So they will advise the employee, six months before she is due to return, that there will be no job. These employers have then taken the position that they have provided six months’ notice of termination and therefore have no further obligation.

That is exactly what happened in Kyluik v. Cardiac Wellness Institute of Calgary Inc. Kyluik went on maternity leave at the end of June 2003. She was due to return to work on July 1, 2004. However, the employer was the victim of budget cuts and four positions were eliminated, one of which was Kyluik’s. On Nov. 27, 2003, it gave Kyluik notice her employment would be terminated effective the day she was scheduled to return to work at the end of her leave.

Kyluik brought a claim for wrongful dismissal. At trial, Justice Hess of the Provincial Court of Alberta found Kyliuk was entitled to eight months’ notice. The court then considered when calculation of that period should start: at the time notice was given, as the employer submitted, or at the conclusion of the leave, as Kyliuk argued. Justice Hess noted that Alberta’s Employment Standards Code provides that “no employer may terminate the employment of, or lay off, an employee who has started her maternity leave or is entitled to or has started parental leave.”

The employer argued it did not actually terminate Kyluik’s employment during the leave, but simply gave notice of the termination effective once the leave had ended. It argued there was no prohibition on giving notice of termination during the leave. Justice Hess considered several previously decided cases and ultimately ruled against the employer, finding that notice of termination and a leave of absence were mutually exclusive. As a result, the notice period could only begin once the leave came to an end. Kyliuk was therefore owed eights months’ pay in lieu of notice.

As a result, employers should be careful when seeking to minimize their duty to provide notice of termination by “double-dipping” and trying to have a period of leave also count as a period of notice. Although some cases have allowed such a practice, the prevailing wisdom seems to be that it will not be allowed and notice during leave will not be effective until the leave is over.

Stuart Rudner practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or by e-mail at srudner@millerthomson.ca.

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