Downsizing a worker on maternity leave

Question: My company is going through a massive downsizing. We are not unionized, so we do have discretion regarding whom we will terminate. One of our employees is pregnant and on maternity leave. If she were not pregnant, it is clear she would be the logical candidate to terminate. Am I obligated to keep her on after she returns from her leave?

Answer: The Employment Standards Act of Ontario seemed to suggest there was an absolute obligation on employers to reinstate an employee who has taken leave. However, the policy of the Employment Standards Branch has been to recognize that if an employer can prove the termination is unrelated to the leave, the employer has a right to dismiss.

This policy has now been codified in the Employment Standards Act, 2000, of Ontario, which states the obligation to reinstate does not apply if the employment is ended solely for reasons unrelated to the leave.

It is should be noted, however, that it is the employer who has the obligation to prove that the termination was unrelated to the leave. In cases of significant restructuring or downsizing this may be relatively easy to do. It is, however, very difficult for employers to establish performance-related justifications for terminating an employee who is on leave or has recently returned from a leave.

Peter Israel, leader of the human resources management group at Goodman and Carr LLP, Toronto, is editorial consultant to Canadian Employment Law Today. He has more than 20 years of experience in employment and labour law. He can be reached at (416) 595-2323.

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