Dismissal during or after Maternity Leave
There is a scam being run by employers across the country, and it is permitted by law.
Most employment law prohibit dismissal during or after maternity leave. Yet it happens anyway. This is because there are various “exceptions” in the legislation permitting dismissal where it is unrelated to the leave.
In Ontario, the Employment Standards Act, 2000 states:
53. (1) Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.
(2) Subsection (1) does not apply if the employment of the employee is ended solely for reasons unrelated to the leave.
What this essentially means is that where the employer has reasons to terminate an employee’s employment that are completely unrelated to the fact that the employee went on a pregnancy or parental leave reinstatement will not be required.
Although many employers try to fit employees within this exception, it is not meant to permit dismissal in cases that are not clearly unrelated to the leave. The question usually asked is, but for the leave, would the employee have lost their job?
In my Metro news article from last week, I discuss this in further detail.
Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which provides practical legal advice and advocacy for workplace issues.