The employer should ensure there is more than sufficient documentation regarding the reasons for the dismissal
By Nadia Zaman
As an employer, you probably have one or more employees who have been on leave in the past, or who are currently away on leave. What do I mean when I say “leave”? Well, that could be a statutory leave such as pregnancy or parental leave, or an ongoing absence for medical reasons.
Having an employee on leave means that the employer will have to manage the workplace in their absence. This “management” will look different for different employers, depending on the length of the leave and the employee’s role, amongst other things. Some employers will need to hire a replacement, while others may not.
But it’s wise not to be an employer that dismisses an employee because they took a leave of absence or because of the reason they did (such as disability or pregnancy). For example, if your employee is pregnant, don’t fire them for being pregnant — that’s pretty straightforward.
However, sometimes the issue of dismissing an employee on leave comes up for reasons entirely unrelated to the leave, such as a need to downsize or eliminate a group or department. And if done right, that’s completely OK.
The thing is, employees on leave or who are planning to be on leave are not suddenly immune from performance management, discipline or termination, just by virtue of their leave. But just like any other disciplinary action, it needs to be justified.
If an employee is pregnant or has a disability, that’s not a reason to discipline or terminate their employment. However, if the employee’s performance has been unsatisfactory, that is a reason to take steps to manage their performance.
It can be tricky, though, if the employee has just requested a leave of absence, because then it might seem like a reprisal, which can be quite costly.
Why? Well, in Ontario, the Employment Standards Act, 2000 (ESA) and the Ontario Human Rights Code prohibit dismissal or reprisal as a result of taking a statutorily protected leave or a leave related to any of the protected grounds under the code. So, if an employer takes the risk of dismissing an employee while they are on leave, it is easy to assume that this decision was based on the leave.
If an employee goes on to make such an allegation, the employer would then have to show that the decision to dismiss was not related to the leave. But how do you prove a negative? The stakes are high, because if a court or tribunal finds that the leave was even a small part of the reason for dismissal, the employer will have breached its legal obligations and be liable to pay damages. This part is worth repeating: The leave only has to be part of the reason for dismissal, and the employer will be found liable.
Risky but not impossible
It’s risky, no doubt, but it’s not impossible. If an employer needs to dismiss an employee on leave or an employee who is planning to take leave, the employer should ensure there is sufficient (or more than sufficient) documentation regarding the timing of the dismissal as well as the reasons for the decision to dismiss.
Basically, it should be manifestly clear that the decision is not related to the leave in any way whatsoever. This will allow the employer to defend any potential claim. Of course, if the dismissal is not crucial and can wait, then let it wait. In any event, prior to making the decision to dismiss, employers should seek legal advice.
If, for example, a company decides to eliminate a department of 20 people, the fact that one of those employees is on leave does not give them greater protection. In such circumstances, it should be easy for the employer to show that the dismissal was entirely unrelated to the leave.
The best approach, when considering a step like dismissing an employee on leave, is working with an employment lawyer to ensure that it is done in a way that minimizes your risk. Documentation is often critical. The lawyer can help you put proper policies and procedures in place and train your managers and supervisors so that they do not take steps that expose you to liability.
Organizations often end up paying inordinate amounts of money because of entirely avoidable mistakes. In addition to extensive damages awards, legal costs and lost time associated with defending claims, companies also risk seeing their name publicly associated with poor HR practices and, in some cases, gaining notoriety as a “bad” employer. Why be that employer when you can avoid it?
Nadia Zaman is an associate at Rudner Law in Toronto.