Elimination of employee on maternity leave's position

If the job of an employee on maternity leave is eliminated for reasonable business reasons, can the employee be terminated while still on leave?

Elimination of employee on maternity leave's position

Question: If the job of an employee on maternity leave is eliminated for unavailable business reasons, can the employee be terminated while still on leave?

Answer: Generally speaking, an employee cannot be terminated while on maternity leave except in very limited circumstances. It is important in such circumstances to first seek legal advice from counsel in the employer’s jurisdiction before proceeding.

An employer may terminate the employment of an employee on maternity leave provided that the reasons are wholly unrelated to the leave itself. For example, if the work of an entire department is contracted out and one employee in that department happens to be on maternity leave at the time, it may be possible to terminate their employment. However, the legality of such action will depend on the circumstances as well as the applicable legislation in the particular jurisdiction. For example, in some provinces employers must offer the employee comparable employment.

Employers should carefully consider their reasons for seeking to terminate an employee who is on maternity leave. If one of the reasons, however small, is related to the employee’s maternity leave or parental status, the employer will be at risk of facing a human rights complaint for discrimination on the basis of sex or parental status.

If a human rights complaint is filed, the human rights commission or tribunal of the jurisdiction will investigate the reasons for the termination. An investigation may involve interviewing employees at the workplace. If the investigation results in a finding that the employer discriminated against the employee on the basis of a protected ground, the employee will be entitled to recover under human rights legislation. Such a finding may result in an order to reinstate the employee, pay back wages, and pay any other damages the employee may have incurred.

Finally, in the event that an employer decides to proceed with the termination of an employee on maternity leave, it is also important to consult with local legal counsel with respect to any statutory or common law notice entitlements of the employee and whether there are obligations to first offer comparable employment to the employee. 

Amy Gibson is an associate with MLT Aikins in Saskatoon, practising general labour and employment law. She can be reached at (306) 956-6994 or [email protected].

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