'Employees who take certain leaves of absence should not be negatively affected in their employment'
An Ontario worker has been awarded more than $43,000 in damages for discrimination and lost wages after her former employer denied her the right to return to her pre-maternity leave position and favoured the employee who replaced her during her leave.
It’s not unusual, where a female worker goes on an extended parental leave, for the employer to hire a replacement and end up preferring the replacement employee to the incumbent, according to Christopher Andree, a partner and past co-leader of the Employment, Labour and Equalities Practice Group at Gowling WLG in Kitchener, Ont.
“When the incumbent is ready to return, the employer can be in a situation where they’re required to reinstate an employee that they view to be less suitable to the replacement,” he says.
“In this case, the employer handled it very clumsily by putting the replacement, it seems, in a position of authority over the incumbent, and then ultimately assigning the incumbent to different duties at a different location.”
Maternity leave for worker
The worker was a receptionist at a medical clinic in Pickering, Ont., starting in 2005. During her time at the clinic, the ownership changed twice, with CMR Kumra Medicine Professional Corporation assuming ownership in January 2016. She worked from 9 a.m. to 5 p.m. four days per week with Wednesdays off.
In August 2015, the worker informed the previous owner that she was pregnant with a due date in March 2016. When CMR took over ownership, it was aware of her pregnancy and that she planned to take a 12-month unpaid maternity leave.
The worker gave birth to her child early and began her maternity leave on Feb. 24, 2016. During her leave, CMR hired a replacement for her receptionist position.
A short time before the worker was scheduled to return, CMR advised her that her work schedule would change to 9 a.m. to 6 p.m., five days per week - an increase from 30 hours to 45 hours per week. She also would be required to provide two weeks’ notice of any future absences and be responsible for finding casual coverage of those absences. The worker was concerned that these changes would make it difficult to pick up her child from childcare, causing her stress and anxiety.
When the worker returned to work on Feb. 27, 2017, CMR gave her new job duties and she felt she wasn’t given adequate training, while her replacement stayed on and unofficially had authority over her. She also felt that management berated her in front of patients when she made mistakes, yelled and swore at her, and accused her of things she didn’t do.
On March 30, the worker’s replacement texted her after she left work to say that the owner only needed her to work on one day – Friday – the following week. When the worker asked why, the reply was that the owner wanted the replacement to work and he didn’t need two receptionists, calling it a “temp layoff.”
The applicant reported for work the next day and CMR advised that she would now be working all the next week but in a different position and in a different office for 30 hours per week. She would work at the other location from 11 a.m. to 2 p.m., with an orientation by the replacement employee.
The worker refused this assignment and resigned.
Constructive dismissal, discrimination
The worker filed a claim of constructive dismissal and discrimination with the Ontario Ministry of Labour in April. On Feb. 27, 2018, an employment standards officer found that CMR had constructively dismissed the worker and ordered the clinic to pay her more than $6,000 in termination pay. The officer didn’t address the human rights part of her claim, stating that it didn’t fall under the jurisdiction of the Employment Standards Act, 2000 (ESA).
The worker then filed a human rights application alleging that CMR discriminated against her with respect to employment on the basis of sex, including sexual harassment, pregnancy, and family status. She said that the loss of her employment put pressure on her marriage, leading to her getting a divorce, and she started seeing a counsellor due to the stress and anxiety.
CMR argued that the employment standards officer from the Ministry of Labour had already dealt with matter and awarded the worker damages, but the tribunal found that the worker hadn’t been given an opportunity to seek human rights damages in that proceeding. In fact, the employment standards officer expressly stated that they weren’t able to consider the discrimination allegations under the Ontario Human Rights Code, said the tribunal.
“The adjudicators under the Ministry of Labour are very attuned to all of the issues and know the case law under the ESA,” says Andree. “They're certainly capable of hearing the evidence with respect to the feelings that the worker would have had as a result of the treatment she sustained, but I don't believe that they’re as knowledgeable or as experienced [in human rights] as the vice chairs of the tribunal.”
The tribunal determined that CMR’s decisions to increase the worker’s hours and reassign her to another office so her maternity leave replacement could fill her position was, on a balance of probabilities, discriminatory on the grounds of sex (including pregnancy) and family status, as they were related to the worker’s maternity leave and therefore her protected grounds.
“The [employment standards officer] considered those issues and concluded it was a constructive dismissal, but for the tribunal to find discrimination, it doesn't need to do the same analysis,” says Andree. “What the tribunal is going to do is analyze whether the changes that were made were motivated by discriminatory grounds.”
Injury to dignity, feelings, self-respect
The tribunal noted that the worker had been employed at the same office for 12 years and she experienced significant anxiety and depression from leaving her employment. This justified damages “at the high end of the relevant range,” the tribunal said.
CMR was ordered to pay the worker $20,000 for injury to dignity, feelings, and self-respect from the discrimination and $23,359 in lost wages – the worker’s income loss since her employment with CMR ended minus the amount already awarded by the employment standards officer - plus pre- and post-judgment interest.
If an employer finds that a maternity leave replacement is preferable to the worker on leave, it’s important to have open and honest communication with the returning employee rather than creating a hostile work environment to try to get the employee to leave, says Andree.
“Tell the employee that they need to improve their performance and have a discussion about the employee’s prospects for long-term success at the employer,” he says. “If there’s a sense that there won’t be a chance for long-term success, then be open and honest about that and let the employee make the decision about whether they want to return - if the employee chooses not to return, it would be my view that it isn’t a resignation, it’s a sort of mutual agreement.”
“We have made the social policy decision that employees who take certain leaves of absence [such as maternity and parental leave] should not be negatively affected in their employment,” adds Andree. “There are employers that don’t favour that approach, but we as a society have made that decision through legislation and employers are required to respect that approach, whether they like it or not.”
