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Obligations for employers when staff return from parental or pregnancy leave • Are there restrictions on an employer’s right to suspend staff?

Obligations for employers when staff return from parental or pregnancy leave

Question: What obligations does an employer in Ontario have to reinstate an employee coming back from a pregnancy or parental leave? Can an employee ever be terminated while on leave?

Answer: When an employee takes a pregnancy or parental leave, employers may discover the replacement employee is better able to perform the job. Or the employee’s job duties may have been divided among several existing employees with good results. In these circumstances the employer may be tempted to maintain the current arrangement and try to reassign or to terminate the employment of the employee returning from leave. The courts and the Ministry of Labour have made it clear that, in these circumstances, the returning employee has a right to be reinstated to her former position.

Pursuant to section 53(1) of Ontario’s Employment Standards Act, an employer is obliged to reinstate an employee who has taken a pregnancy or parental leave. The employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position if it does not. If the job is still there, and if the same work is being done, the employee has a right to return to that position, even if another employee has and is currently performing the job. A position cannot be deemed to “not exist” only because it is occupied by another employee.

Employers should be aware of a number of cases where courts and tribunals have interpreted section 53 to mean an employee returning from pregnancy or parental leave has an absolute right to be reinstated. The employer has a heavy onus to demonstrate the decision to terminate was wholly unrelated to the fact that the employee took a leave.

Legitimate grounds to terminate include:

•where there has been a mass lay-off;

•where the employee has been hired for a fixed-term contract, and this term expires while she is on leave; or

•where the employee was guilty of wilful misconduct.

If legitimate grounds exist the employer may dismiss the employee during her leave. Unless the employee is otherwise not entitled to notice, the employer is still obliged to pay notice to the employee.

Are there restrictions on an employer’s right to suspend staff?

Question: Are there restrictions on an employer’s right to discipline non-union, salaried employees by administering an unpaid “reflection leave” (in other words, a suspension). We have considered this, but there is nothing in any employment agreements or employee handbook that reserves this right for the employer. Are there dangers to this approach?

In Ontario the law is relatively clear that if the employer has a policy with respect to imposing suspensions on employees, which arises out of an employment agreement, policy manual or past practice, then you as the employer have the right to do so.

However, if you do not have such a policy, it is important to remember you can implement a new policy at any time instituting such a right provided you give reasonable notice of the change. There is nothing to stop an employer from implementing such a policy by advising all employees of the change and the reason for needing the extra disciplinary measure, and telling the employees the change will take effect in a specified period of time.

This period of time can be for a minimum of six months to a maximum of two years, depending on the actual length of service of most employees. You can contact a lawyer to get specific advice with respect to the implementation of such a policy, which will be determined on the basis of the particular employment details of the employees involved.

Peter Israel is the head of Goodman and Carr LLP’s Human Resource Management Group. He can be reached at (416) 595-2323 or [email protected]. Address questions to [email protected].

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