New position after pregnancy leave close enough: Board

Employee wasn't returned to same job after maternity leave but old job no longer existed

An Ontario employer has won its appeal of a decision that it didn’t return an employee to a similar position after maternity leave, despite a pay difference.

Aimerance Kabongo worked in a Toronto call centre operated by TRG Customer Solutions. Her position as a customer service representative (CSR) sometimes required different shifts and she worked on different campaigns.

For most of her time since being hired in 1996, Kabongo worked on inbound campaigns, which involved incoming calls from existing customers looking for assistance on products already purchased. Inbound campaigns were usually run in the daytime, while outbound campaigns, which involved calling people to sell new products, were run in the evening.

Kabongo worked for four years on the same inbound campaign and earned an hourly wage plus a $2 per hour bilingual premium since she dealt with both English and French callers. She was with this campaign when she went on pregnancy leave in December 2004.

While Kabongo was on leave, the inbound campaign she had been with ended. When she returned to work on Dec. 12, 2005, there were two regular inbound campaigns running, but CSRs working them were expected to upsell related products during calls. Two other inbound campaigns were running but they were winding down. There were more outbound campaigns running and Kabongo was assigned to one of these.

Kabongo had expected to be assigned to one of the inbound campaigns that was winding down because it required a bilingual CSR and its hours were the daytime hours she had worked before. The outbound campaign had later hours which didn’t correspond to her child care arrangements and didn’t pay her the bilingual premium on her hourly wage.

Kabongo didn’t do well in her new role and her sales were lower than other CSRs. TRG encouraged her to stick it out, but she felt her personality wasn’t aggressive enough to do cold calling and hard selling. TRG believed she didn’t make enough of an effort to succeed and gave her several written warnings. Supervisors also gave her regular input on her work. However, things didn’t improve and Kabongo’s employment was terminated on May 16, 2006.

The Ontario Employment Standards Officer ruled TRG contravened the legislative requirement to return Kabongo to a similar position and wage after her pregnancy leave and ordered the company to pay her $41,179.29 in lost wages, termination and severance pay.

TRG appealed the decision to the Ontario Labour Relations Board, arguing CSR positions were the same, regardless of the type of campaign worked. However, the board disagreed, finding the duties and skills between the two types of campaigns were different. The board acknowledged there were similarities but the outbound position was for selling and the inbound was for helping customers. It also noted TRG evaluated the positions differently.

However, the board found that, with the winding down of two inbound campaigns, Kabongo’s old position of inbound CSR didn’t exist when she came back. Therefore, the outbound position she was given was the most comparable to her old one in terms of location, working environment and opportunity. The board revoked the compensation for lost wages, leaving TRG on the hook only for termination and severance pay. See TRG Customer Solutions Inc. v. Kabongo, 2010 CarswellOnt 5648 (Ont. Lab. Rel. Bd.).

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