Notice of dismissal doesn’t include maternity leave: Court

Employee can't be on maternity leave and on notice at the same time: Court

A New Brunswick employee who was laid off while on maternity leave was entitled to full notice of termination from the end of her leave, the New Brunswick Court of Queen’s Bench has ruled.

Patricia Donnelly was a marketing manager for Kings Landing, a historical settlement and museum in Prince William, N.B. She starting working for the settlement in April 2001 and went on maternity leave in June 2009. A few months later, on Sept. 29, 2009, Kings Landing decided to restructure the business. This restructuring resulted in the elimination of Donnelly’s job, so it informed her she was being laid off, effective 30 days following the end of her planned return to work on June 14, 2010. Kings Landing considered this more than nine months’ notice.

Donnelly filed a grievance, claiming Kings Landing had discriminated against her on the basis of sex by providing her with insufficient notice.

An adjudicator dismissed the grievance, finding the decision to lay off Donnelly was the result of a bona fide reconstruction of the workplace and had nothing to do with her maternity leave. The adjudicator also found the thirty days’ notice was consistent with New Brunswick’s Employment Standards Act and the date of layoff was several months from her notice.

Donnelly appealed to the Court of Queen’s Bench, arguing the adjudicator’s decision was incorrect on the law of reasonable notice. The court overturned the adjudicator’s decision, finding the Employment Standards Act was not an issue, but rather Donnelly’s entitlement to common law notice was. The court also found that as a government employee — Kings Landing was a tourist site operated by the provincial government — the employment relationship was contractual, as established by the Supreme Court of Canada in 2008. In addition, there was no written contract that would indicate Donnelly was not entitled to common law notice.

The court found maternity leave is intended to give mothers time to care for their babies without having to report to work, and notice of dismissal is intended to give employees a reasonable amount of time to look for work. Since a mother should not be expected to look for work during the time she is not expected to work, maternity leave should not be part of the reasonable notice period, said the court.

“A mother on maternity leave is not required to go to work, therefore it cannot be said that she is both on leave and on notice at the same time,” said the court. “The two concepts are incompatible.”

The court found Donnelly was entitled to eight months’ notice from the end of her maternity leave. See Donnelly v. Kings Landing Corp., 2011 CarswellNB 505 (N.B. Q.B.).

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