B.C. case highlights pitfalls for employers
“For over 30 years now, the law in Canada is clear: a pregnancy should not lead to work-related disadvantages,” says Amber Prince, tribunal member of the British Columbia Human Rights Tribunal.
And yet, once again, an employer has failed, in discriminating and constructively dismissing an employee on maternity leave.
Released July 29, 2022, Prince’s decision (LaFleche v. NLFD Auto dba Prince George Ford (No. 2)) provides important takeaways for HR and employers when it comes to handling these situations.
“The bottom line is that employees must be given the opportunity to return to their position that they left before they went on leave, and employers need to make efforts to the point of undue hardship to ensure that that happens, and employees don't experience any work-related disadvantage,” says Kayla Bergsson, an associate at MacIsaac & Company in Victoria.
“Employers need to make business choices but the underlying point of the [human rights] legislation is to ensure that those choices don't result in negative effects to employees that are on leave for code-protected grounds. So the main thing is to make sure there's a balance.”
Maternity leave misunderstandings
Mellissa LaFleche started working as a social media manager at NLFD Auto in 2015 and was promoted to marketing manager at the end of 2016. In May 2018, she went on maternity leave.
In February 2019, LaFleche met with her new manager and discussed the idea that her replacement would continue working at Ford; she was told they would provide further details about her return to work before the end of March.
But LaFleche left the meeting feeling that she was being demoted and replaced by the new marketing manager, and she subsequently filed a human rights complaint.
Ford did not provide LaFleche with more information, while LaFleche did not inquire further. She decided that Ford was terminating her employment, saying on Facebook in May 2019 that she “got fired.”
LaFleche never returned to work at the end of her maternity leave on July 2, 2019. In a call with Ford on July 4, however, she was told she hadn’t been fired but the company was responding to her human rights complaint.
Ford says it had planned to return LaFleche to her marketing manager position, with changed duties, and by not returning, she abandoned her job.
In the end, the tribunal decided that Ford did remove LaFleche from her position and constructively dismissed her from her employment. In doing so, Ford discriminated against LaFleche, so she was entitled to: compensation for injury to her dignity, feelings and self-respect and; lost wages and maternity/parental benefits.
Prince awarded $12,000 for injury to dignity and $66,625 for total wage loss and benefits.
Communication issues
While an employer is entitled to make legitimate business decisions during a maternity leave, Ford was not entitled to make changes that left LaFleche at a disadvantage compared to other employees who were not on leave, said Prince in her decision.
In addition, LaFleche was “not consulted or kept in the loop about the changes,” she said.
“Ford bore the responsibility to follow up to address with Ms. LaFleche the changes it was making during her maternity leave… it was not Ms. LaFleche’s responsibility to mitigate the position Ford unilaterally put her in: an atmosphere of humiliation from being removed from her marketing manager position; a reasonable perception that Ford did not really welcome back; and an uncertainty of what position, if any, she would return to.”
There were definitely problems with how this case was handled, says Bergsson.
“There were some communication issues in that the employer had not really kept the person returning from leave in the loop while she was away from work on her leave — it made changes unilaterally without consulting her about those changes.”
It seems like there was miscommunication or lack of communication, but good communication is critical in a maternity leave, says Cissy Pau, principal consultant at Clear HR Consulting in Vancouver.
“We like to keep the person in the loop to the extent the person wants to be kept in the loop.”
It’s a good idea for employers to ask that person how much communication they want from the company while they're off, because ideally the person shouldn’t be bothered while they're on leave, she says.
“But some people want to receive the email bulletins about the latest company quarterly update, or if they have an all-staff meeting once a year.”
And the manager of that person should be touching base with them to see how things are going, and to find out whether they’re still planning to come back to work at the expected time, says Pau.
“You just want to talk about ‘There's been some changes around here, I wanted to just fill you in’ or ‘We’re on track to have you come back, and let's talk about what the transition will look like.’”
Know the rules
Lafleche was prepared to adapt her marketing manager duties based on Ford’s needs and directions of the general manager, said Prince in her decision.
“What she was not prepared to do was relinquish her marketing manager position to the person who filled her role while she was on maternity leave. That is what she reasonably understood had happened after her meeting.”
The whole idea with human rights legislation is to ensure that the employee isn't subjected to any disadvantage by being on leave, says Bergsson.
“That will look different for everybody but the position cannot be changed while the employee is on leave, especially without the employee being consulted,” she says.
“If the employee hadn't been on leave, then they would be a part of those discussions, especially the employee in this case, because she was in a managerial role.”
It's easiest if the person is returned to the same job, of course, but a lot can change in a year or two years of leave – especially with the upheaval of the pandemic, says Pau.
“The job that you left in May of 2020 is not necessarily going to be the same job in May of 2021,” she says.
“If the job that that person left is no longer available or not in the same vein as what they left, you need to make sure that the role that they're coming back to is similar or comparable — so a similar level or scope of duties, pay is the same, the benefits are the same, the perception of the level of work is the same or similar.”
Pay is not the only factor, says Pau.
“If they have the same pay but the scope of work is obviously a demotion, that's not necessarily going to fly — that would be potentially a constructive dismissal claim.”
Employers who offer maternity leave top-up benefits are more likely to retain those workers, according to a Statistics Canada study.
Too often, employers aren’t aware of their obligations or responsibilities when it comes to maternity leave. They don’t know how the person’s job should be handled, for example, or want to change the job, she says.
“We get that question all the time: ‘I like the replacement better…’ I'm like, ‘Well, that's too bad… you need to provide the person off on leave comparable work when they return.’”
Preparation makes all the difference
The mishandling of the February meeting – and lack of followup – are signs of inexperience with the management team, says Pau.
“It is so typical of our clients. They don't know that they can't [do certain things…] They're not meaning to be difficult; they're not trying to be discriminatory. They just don't realize that if you like the replacement better, you can't just keep the replacement [and] that the person that's on leave has a right to their job… or they’re just thinking about their business.”
There clearly was a lack of preparation ahead of the meeting to discuss her return to work. But preparation is key “to ensure that the employee’s transition back to work goes smoothly,” says Bergsson.
“One of the things that can be done to make sure that happens is for employers to establish their own policies, and that helps make sure that they're abiding by the human rights legislation that applies to them,” she says.
“It won't always be a one-size-fits-all approach, but just having some guidelines to work with can be helpful.”
