Date: 2010
Author: Daniel A. Lublin
Publication: Metro

Employees fired before or after maternity leave have legal options

There is a scam being run by employers across the country. And it is permitted by law. An employee is fired either shortly before or during her maternity leave. She claims that she was fired because she was pregnant or took time off and that her replacement, who has less seniority, took the job she ought to have retained. The employer, of course, disagrees. Her position no longer exists, or if it does, her termination was unrelated to her leave.
Sometimes there is no replacement hired, at least immediately. But sooner or later, job advertisements will appear, listing most of the duties that she used to perform. When she was fired, she was told that the “restructuring” eliminated her position. However, now the company requires someone to perform most or all of her role, only with a different title.
Terminating employees during maternity leave is generally illegal. But it happens anyway. This is because the legislation in some provinces contains qualifiers, allowing dismissal only where the employer can show it was unrelated to the employee’s leave. This is why jobs are often reorganized while employees are away, so that the employer can fit within the exception. Other provinces prohibit termination during leave but then allow it as soon as the employee returns. These scenarios unfold at workplaces throughout the country, with provincial tribunals and courts increasingly being asked to intervene.
What can employees do?
File a complaint with a provincial ministry or tribunal. Employment standards legislation provides various levels of protection. However, unlike court proceedings, where the onus to win a case is on the person who files it, employment standards legislation requires employers to disprove that the termination was illegal.
File a human rights complaint. Although human rights legislation does not require an employer to reinstate an employee following maternity leave, it does not permit termination where there was a connection to that employee’s leave.
Sue for wrongful dismissal. There are court cases stating that even if an employee is not fired because she is pregnant or took a leave, she may be entitled to more severance than she would otherwise be entitled to because it would generally be more difficult for her to find other work.
Threaten proceedings and then negotiate for more. Employees are owed severance pay when terminated before, during or after their maternity leave. It is open to them to argue that their personal circumstances entitle them to more. Make this argument with an experienced lawyer — not on your own.