Author: Daniel A. Lublin
Employees fired before or after Maternity leave have legal options
It is one of the least understood and most contentious issues in employment law. An employee is fired either shortly before, or during, her maternity leave. The employee claims she was fired because she was pregnant or took time away. She says 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. This scenario unfolds at workplaces throughout the country, and our courts are increasingly asked to intervene.
Generally, I recommend three approaches:
File a complaint with the Ministry of Labour: Employment standards legislation provides various levels of protection. In Ontario and British Columbia, employment laws require employers to reinstate employees following their maternity leave, with few exceptions. Aside from restructuring, downsizing or where the position no longer exists, the employee is entitled to her pre-leave position or a comparable job if her old job no longer exists.
An employee must actually commence maternity leave in order to receive any protection from provincial statutes. If she is fired, even one day before her leave begins, provincial ministries of labour, which enforce employment standards, will not intervene. In these cases, an employee can turn to the courts or provincial human rights tribunals, where even just the fact of being pregnant can be sufficient to justify additional compensation.
Sue for wrongful dismissal. When 29-year-old Lorna Harris was dismissed from her work on the company’s assembly line, she sued for wrongful dismissal. Harris, who was three months pregnant when fired, argued that she ought to receive additional severance, as it would be more difficult for her to find other work. The court agreed. Although it was not clear whether her employer, Yorkville Sound, fired Harris because she was pregnant, it did not matter. Rejecting the company’s argument that where pregnancy is not a factor in the dismissal, it should not be a factor in calculating damages, the court awarded Harris an additional two months’ severance, concluding she deserved more than a non-pregnant employee would receive. If there is evidence that the employee was fired because she was pregnant, a court or human rights tribunal can also award additional damages for discrimination.
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.