Time off for parental leave doesn’t count towards notice period

Alberta judge says employers can’t dismiss workers during parental leave

Giving a worker on parental leave notice of termination during her leave doesn’t get the employer off the hook for reasonable notice, an Alberta court has ruled.

Justice Hess of the Alberta Provincial Court said employers can’t give notice during the leave and expect it to count towards the reasonable notice of termination the worker is entitled to. In fact, s. 52(1) of Alberta’s Employment Standards Code specifically states that no employer may terminate the employment of, or lay off, an employee who has started maternity leave or is entitled to or has started parental leave.

What the employer did

Cardiac Wellness Institute of Calgary Inc. went through a downsizing in the fall of 2003. Faced with budgetary restrictions imposed by the Calgary Health Region, a decision was made to eliminate a number of positions. One of the jobs to be eliminated was Linda Kyluik.

Kyluik had started working for Cardiac Wellness in 1997. In June 2003 she went on maternity leave which was followed by parental leave. She intended to return to work on July 1, 2004, when her entitlements for maternity and parental leave had been exhausted.

But in November 2003, the company made the decision to terminate her employment as part of the downsizing. On or about Nov. 27, 2003, Cardiac Wellness gave her notice that her employment was to be terminated “effective the day” she was to return from her parental leave.

Kyluik complained about the way the termination was handled. On Nov. 27, she received a telephone call from her immediate supervisor who told her that she was to be laid off and that a courier would deliver a package outlining the details.

Kyluik said her supervisor was cordial and probably expressed both sympathy and regret in the decision taken by Cardiac Wellness. But she wasn’t happy with the way the package was delivered by the courier, who simply rang the bell and left it on the doorstep.

She also said she received a call from Toombs KWA Inc., a resource hired by Cardiac Wellness to advise her and provide administrative support for planning and carrying out her job search. Kyluik said she felt pressured by Toombs and also felt pressured to look for employment. But she had no intention of looking for a job while she was on parental leave.

In general, she said she was “extremely stressed over the whole situation.” She lost sleep and the matter “very much consumed” her over the entire leave.

The court’s decision

The court had a number of issues to address in this case: What was the appropriate notice period? Were additional damages warranted for the way the dismissal was handled? And can an employer use the statutory period for parental leave in calculating the notice required for termination?

Reasonable notice: The court said Kyluik was entitled to eight months’ notice. She had been on the job for more than seven years. She had a university degree and was an important part of the development and delivery of the programs and services offered by Cardiac Wellness.

Aggravated damages: The court said Kyluik was not entitled to additional damages for the way her employer handled the termination. Cardiac Wellness did not act in a manner to single out or target her, and it had a bona fide reason for dismissing her, mainly to meet its financial restraints by implementing the cost-containment measures which resulted in the elimination of her position.

Notice period and parental leave: The court struggled a bit with the last question. The essential question was whether the eight months’ notice Kyluik was entitled to should begin on July 1, 2004 (the date she was to return from parental leave) or Nov. 27, 2003 (the date she was told her employment was terminated).

Cardiac Wellness argued it should begin on Nov. 27, while Kyluik said her employer shouldn’t benefit from the fact she was on maternity leave at the time it dismissed her and that the eight months should begin on July 1. The court ultimately sided with Kyluik.

It said the province’s legislation clearly stated that an employee’s employment cannot be terminated while on either maternity or parental leave, and that was exactly what Cardiac Wellness was trying to do. Therefore, Kyluik was entitled to eight months’ notice of termination starting on July 1, 2004.

For more information see:

Kyluik v. Cardiac Wellness Institute of Calgary Inc., 2005 CarswellAlta 2034, 2005 ABPC 360 (Alta. Prov. Ct.)

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A trilogy of cases In Kyluik, the Alberta court looked at three relevant cases out of British Columbia dealing with the issue of notice periods and parental leave.

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