But employers need to be prepared to 'prove a negative'
By Stuart Rudner
There is an unfortunately widespread perception that employees cannot be dismissed when they are on a medical or disability leave, a pregnancy/parental leave or even when they have given notice of their intention to take such a leave.
This is patently false.
Employees that are on leave, or are planning to take leave, can be dismissed like anybody else. However, they cannot be dismissed because of the leave or the underlying reason for it.
Employees should understand that taking a leave, whether it be stress related, pregnancy related, or otherwise, does not provide them with "immunity" from a dismissal that is otherwise inevitable. It is unfortunate but true that some individuals, knowing their employer is unhappy with their performance and that dismissal is likely, will find a sympathetic doctor and obtain a note allowing them to go on stress leave.
They do so based upon the notion it will prevent them from being let go. Unfortunately, there is widespread confusion amongst employers in this regard, many of whom are of the same belief. When they receive the doctor's note, they assume that their plans to dismiss an underperforming or otherwise unsatisfactory employee must be put on hold, often indefinitely.
The reason for this confusion is, perhaps, understandable. Our employment standards and human rights legislation prohibits dismissal or other adverse consequences as a result of the taking of a leave provided for by statute or related to disability or other protected grounds. When an employee on leave is dismissed, it is easy to jump to the conclusion the decision to dismiss was made as a result of the leave in question. If such an allegation is made, the practical reality is that the employer will have to prove a negative; in other words, they will need to adduce evidence demonstrating that the decision to dismiss was not related to the leave.
Providing that they can do so, then they will not have any liability on that basis. However, if a court or tribunal concludes the leave was even a tiny part of the reason for dismissal, then the employer will be in breach of its legal obligations and be ordered to compensate the dismissed employee. The leave does not have to be the only reason for dismissal in order to support a finding of liability; it only has to be part of the reason.
In a recent case out of the Maritimes, Parent v. Spielo Manufacturing Incorporated, the evidence revealed the employer had made the decision to dismiss the plaintiff as a result of its unhappiness with her performance. However, before the decision was implemented, she went on leave. The employer decided to hold off on dismissing her until she returned to work, which it did promptly upon her return. She then filed a claim and alleged there were ulterior motives for the dismissal. Ultimately, the court found the employer had demonstrated legitimate reasons for its decision to dismiss, and that the dismissal was entirely unrelated to the leave. As a result, it ruled in favor of the employer.
For employers, the case is a reminder of a number of important points. First, if you are going to dismiss an individual that is taking leave or has announced their intention to do so, you should ensure that there is ample documentation of the timing of and reasons for the decision, and that it is unequivocally clear that the decision is unrelated to the leave. Doing so will help you successfully defend any claim that is brought.
In addition, however, the case is a reminder that although you may be able to successfully defend a claim, that does not mean that you can prevent one from being made. While the Parent case referenced above is an example of a situation where the employer ultimately "won," the practical reality is that they were forced to incur substantial legal fees, as well as devote substantial resources to the defence of the legal action.
For employees, this recent case should serve as a reminder that there is nothing inherently wrong with dismissing an employee that is taking, has recently taken, or has announced their intention to take leave. You should not assume that you have a legal claim based solely on such facts. In order to succeed in a claim on this basis, you must be able to satisfy a court or tribunal that the decision to dismiss was at least partially related to the leave or, in certain circumstances, the underlying reason for taking it. Otherwise, you are not guaranteed that your job is secure just because you take a period of leave.
Stuart Rudner is an HR lawyer and a founding partner of Rudner MacDonald LLP, a Toronto-based firm specializing in Canadian employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at [email protected]. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.