Introduction
In previous generations, it was uncommon for men to take time away from work to support their spouse or partner after the birth or adoption of a child. As society has advanced to a more inclusive and progressive place, many men now take leave after welcoming a new addition to their families.
In Ontario, employment laws recognize the importance of this time by providing job-protected parental leave for eligible employees.
However, some employees are surprised to learn that their job can still be terminated while they are on leave under certain circumstances. When this occurs, many employees have questions about whether the termination is lawful and whether they are entitled to severance.
Quick answer
Employees in Ontario can be terminated while on paternity or parental leave, but the termination cannot be because of the leave itself. Under the Ontario Employment Standards Act, parental leave is job-protected, meaning employers cannot dismiss employees for taking leave. However, if a termination occurs for legitimate business reasons unrelated to the leave, such as restructuring or layoffs, it may still be lawful. Importantly, employees terminated while on parental leave are generally entitled to the same severance pay they would receive if they were actively working, including statutory notice, severance pay where applicable, and potentially common law severance.
What is ‘paternity leave’ in Ontario?
Under Ontario’s Employment Standards Act, 2000 (ESA), there is no separate category called “paternity leave.” Instead, fathers take parental leave, which provides job-protected time off following the birth or adoption of a child.
Eligible employees, in this case the father or non-birth parent, may take up to 63 weeks of unpaid parental leave.
At the end of the leave, employees generally have the right to return to:
- Their previous position, or
- A comparable position with similar pay and responsibilities
Although parental leave is unpaid by the employer, employees may receive Employment Insurance (EI) parental benefits through the federal government.
Can you be terminated while on paternity leave?
In general, employers cannot terminate an employee because they take parental leave. Doing so could violate both the Employment Standards Act and human rights legislation.
However, an employer may still terminate employment during leave for legitimate business reasons unrelated to the leave, such as:
- Company-wide restructuring
- Layoffs
- Elimination of a position or department
The key issue is whether the parental leave influenced the termination decision. If the leave played any role in the employer’s decision, the dismissal may be unlawful.
What happens to severance if termination occurs during leave?
If an employee is terminated without cause while on parental leave, they are generally still entitled to the same severance rights they would receive if they were actively working.
This means the employee may be entitled to:
- Statutory notice of termination or pay in lieu of notice
- Statutory severance pay (for eligible employees under the ESA
- Common law severance, which can often be significantly greater than the ESA minimums.
Importantly, being on parental leave does not reduce or eliminate severance entitlements.
Employers cannot avoid severance obligations simply because an employee is away on parental leave.
How Is severance calculated for employees on leave?
Severance is typically calculated based on several factors, often referred to as the Bardal factors, that courts consider when determining reasonable notice.
These include:
- Length of service
- Age of the employee
- Position and level of responsibility
- Availability of similar employment in the job market
Courts aim to provide the employee with a reasonable period of time to find comparable employment.
In many cases, common law severance can amount to several months of compensation and occasionally up to two years, depending on the circumstances.
For employees on leave, the calculation generally reflects their normal compensation before the leave began, not the fact that they were temporarily away from work.
Signs your termination may be related to parental leave and discriminatory
While employers can terminate employees during parental leave for legitimate reasons, some situations may suggest that the termination is connected to the leave itself.
Potential warning signs include:
1. Timing of the termination
If the termination occurs shortly after the employee announces or begins parental leave, it may raise concerns.
2. Replacement during leave
If the employer hires a permanent replacement instead of a temporary one and then eliminates the original employee’s role.
3. Negative comments about the leave
Statements suggesting that the employee’s leave caused inconvenience or frustration for management.
4. Different treatment compared to other employees
If employees who did not take leave were retained while the employee on leave was dismissed without a clear explanation.
If any of these factors were present, the termination of your employment may be related to parental leave.
Key takeaways
Parental leave is job-protected in Ontario, and employees should not face negative consequences for taking time off to care for a new child.
However, termination can still occur during parental leave if it is based on legitimate business reasons unrelated to the leave.
If employment ends during parental leave, employees are still be entitled to:
- Statutory notice or termination pay
- Statutory severance pay, where applicable
- Common law severance that may exceed ESA minimums
Understanding your rights is important when evaluating whether a termination during leave is lawful.
Frequently asked questions
Can I be fired while on paternity leave in Ontario?
Yes, but only if the termination is unrelated to the parental leave. Employers cannot dismiss employees because they took job-protected leave.
Do I still receive severance if I am terminated during parental leave?
Yes. Employees terminated without cause during parental leave are typically entitled to the same severance they would receive if they were actively working.
Does parental leave reduce severance pay?
No. Severance is generally calculated based on the employee’s normal compensation prior to the leave.
What should I do if I am terminated during parental leave?
You may wish to speak with an employment lawyer to determine whether the termination was lawful and whether the severance offered is fair.
Conclusion
Being terminated while on paternity or parental leave can be stressful and unexpected. However, employees in Ontario remain protected by employment laws that safeguard both their right to take leave and their entitlement to severance if their employment ends.
If your employment has been terminated while on paternity leave, it is important to understand whether the decision is lawful and whether the severance offered reflects your full entitlements.
The employment lawyers at Whitten & Lublin regularly advise employees on severance packages, ESA compliance, parental leave rights, and workplace termination.
Contact Whitten and Lublin team to discuss your situation. Book a consultation online or call 416 640 2667.
Author – Jordan Cantor
