Reinstating workers after leave

Employers have an obligation to return employee to former position, but there are exceptions

Employers generally understand they are required to reinstate an employee returning from pregnancy or parental leave to her former position.

However, this reinstatement obligation is not absolute. An employer is not obligated to reinstate the employee following her leave if the employment is ended for reasons completely unrelated to the leave. Of course, if an employer dismisses an employee following the leave, the employee remains entitled to appropriate compensation as a result of that dismissal.

The relevant principles sound simple enough. Where employers typically face problems in applying these principles are in situations where either a position previously occupied by an employee on leave is altered or terminated by a workplace reorganization or restructuring during the leave.

If an employee’s position has actually been eliminated during a pregnancy or parental leave, the employer may reinstate the employee to a comparable position. In Ontario, an employer is not required to actually create a new position for the employee returning from leave but it is required to consider whether any comparable positions exist.

It is difficult to determine exactly what a “comparable” position is in any given case. However, it is clear that equivalent wages and benefits are not enough. Rather, the question to be asked is whether a reasonable employee in the same circumstances as the returning employee would consider the position comparable to the former position. In making this assessment, it is important to consider factors such as the:

•location of the position;

•hours of work;

•working environment;

•degree of responsibility;

•job security;

•prestige; and

•possibility of advancement.

Employers must therefore avoid taking a narrow view of what may constitute a comparable position for an employee returning from a leave following a restructuring.

In order for an employer to refuse to reinstate an employee following a pregnancy or parental leave, the employer must end the employment for reasons completely unrelated to the leave. To the extent the leave was explicitly or implicitly a factor in making the decision to dismiss the employee, an Ontario employer, for example, will have contravened the province’s Employment Standards Act. The question to ask is, but for the leave of absence, would the employee have been identified for dismissal? If the decision to terminate is in any way based on the employer’s discovery during the leave that the employee (or her position) is dispensable, or that the employee is a weaker performer than previously realized, the answer to this question will clearly be no.

Similarly, if the employee is not replaced during the leave, but rather her duties are simply divided among other employees, this will likely be insufficient to demonstrate that employment was ended solely for reasons unrelated to the leave.

The employer has the burden of proving the dismissal was totally unrelated to the leave. Unless the downsizing results in the wholesale closure of the part of the business where the employee worked, this burden can be very difficult to discharge. Consider a situation where a reorganization results in the dismissal of two out of four account manager positions. Should the employer decide to terminate an account manager who is on leave, the employer will need to demonstrate the leave was completely unrelated to the decision to dismiss that account manager rather than those who weren’t on leave. Tribunals are very sensitive to the fact the employee on leave was “out of sight” and therefore possibly “out of mind” during the restructuring process.

Employers should carefully consider the restructuring or downsizing of employees on pregnancy or parental leave. If organizational changes serve to eliminate the employee’s position, the employer must carefully consider whether a comparable position exists for the employee. Similarly, if the employer proposes to terminate the employment following a leave as a result of a restructuring, it must be able to prove the dismissal is completely unrelated to the employee’s leave. Failure to take such steps may result in claims against the employer that will be extremely difficult to defend.

Holly Reid is an associate at the Toronto office of Blake, Cassels and Graydon. She may be reached at (416) 863-5255 or [email protected].

Parental leave
Ontario’s law

In Ontario, the Employment Standards Act, 2000 provides that, following the end of a pregnancy or parental leave, an employer must reinstate an employee to the same position she most recently held with the employer prior to the leave. If that position no longer exists at the time that the employee is ready to return to work, the employee must be reinstated into a comparable position. For more information about other jurisdictions, see this issue’s Web sight.

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