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The Right to be Reinstated after Maternity/Parental Leave not Guaranteed Under the Canada Labour Code

In a previous post we advised provincial employers how to navigate return-to-work issues under the Employment Standards Act following maternity/parental leave. Federal employers, however, find themselves facing different issues as the language in the Canada Labour Code (the “Code”) is not identical to the language in its provincial counterpart. In a recent decision Adjudicator Randi Abramsky clarified federal employers’ obligations in respect of employees on maternity/parental leave who are scheduled to return to work following a reorganization by the employer.

The Code provides that following a leave, an employee on maternity or parental leave shall be reinstated in the same position he or she occupied prior to the leave. If the employer cannot reinstate the employee to the same position for valid reasons, the employer shall reinstate the employee in a comparable position. The Code also provides that non-unionized employees may make a complaint of unjust dismissal under the Code (which is different from the common law wrongful dismissal), but that such complaint will not be considered if the dismissal was due to a lay off or because of the discontinuation of a function.

In Moday v. Bell Mobility Inc., [2013] C.L.A.D. No. 48 Margaret Moday, a 13-year employee who was on maternity leave was advised that her position was discontinued as a result of a reorganization of her employer, Bell Mobility. She was given a severance package that exceeded the requirements of the Code. She was not returned to her former position at the end of her leave, nor was she returned to a comparable position.

Ms. Moday filed a complaint of unjust dismissal. Bell Mobility defended the complaint by stating that the reorganization resulted in the discontinuance of Ms. Moday’s function and that, therefore, the adjudicator should not consider her complaint.  Adjudicator Abramsky agreed, and dismissed Ms. Moday’s complaint, finding that her right of reinstatement after maternity and parental leave does not take complete precedent over her employer’s right to reorganize the workforce. Bell Mobility was able to show that its reasons for discontinuing Ms. Moday’s position were bona fide and not a sham to deprive her of her statutory rights. As a result, she was dismissed for legitimate business reasons and did not have a claim to either her pre-leave position or a comparable position.

Employers may sometimes feel that they are prevented from making legitimate business decisions surrounding an employee’s position while he or she is on maternity or parental leave. Clearly, at least for federal employers, such is not the case if the decision is a legitimate business decision.  Employers, however, are well advised to ensure that the fact that an employee is on leave does not in any way factor into the decision.

The lawyers at CCPartners regularly provide employers with strategic advice on return-to-work issues. Please contact any member of our team for assistance.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.



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