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Can an Employee on Maternity Leave be Terminated?
Can you Fire an Employee on Maternity Leave?
Pregnancy and maternity leave are both exciting and challenging periods for many people. While the welcome of a new family member is joyous, it may give rise to worries about professional development and job status. Sometimes, employees who take maternity leave get fired during their leave. This may be illegal; however, it is indeed legal in Canada, but there are many nuances to it. In this article, we at De Bosquet PC will give a brief overview of this complicated matter.
What are the rights of an employee taking maternity leave in Canada?
In most instances, an employee taking maternity leave in Canada has the right:
- Of reinstatement and the same employment, she held before taking leave should be granted.
- To be free of penalty for taking maternity leave.
- To a similar position if the previous employment of the individual no longer exists.
- To be compensated at least as much as she earned before the leave.
- To receive a greater salary when the salaries rose while the employee was on leave.
- To remain in benefit programs, including pension, life assurance, accidental death, extended health, and dental policies.
However, an employee who is on maternity leave can be lawfully terminated from her job in Canada. However, maternity leave cannot be a cause for termination. It is very uncommon for an employer to recognize that they have taken action against an employee for maternity leave.
As it is lawful to terminate an employee’s job when she is on maternity leave, only cases of discrimination can lead to wrongful termination. Even if there is no first-hand evidence of prejudice, there is often evidence to establish discrimination by the employer based on past and systemic conduct.
What are some instances of discrimination against employees taking maternity leave?
Examples of discrimination against employees taking maternity leave include:
- A pattern of ending jobs of employees who are on maternity leave;
- Firing staff on maternity leave for performance problems, while the same performance issues did not lead to the termination of other staff;
- An employee on maternity leave was the sole employee out of a vast personnel pool whose employment was terminated.
- Terminating the job of an employee on maternity leave because they do not have the credentials required, even if their successor lacks skills;
Employers must take extremely cautious action when firing pregnant workers. An employer can dismiss an employee while pregnant, provided the termination has nothing to do with the pregnancy (i.e., the employer’s work is stopped).
Provided you are allowed on maternity or parental leave, the Labor Code of Canada stipulates that an employee is entitled to get severance pay if she has completed at least 12 consecutive months of continuous work before her job has expired or terminated. The employee has the right to a regular two-day salary for each full year she has worked for the company before termination. She does not have to alter this by being laid off for maternity or parental leave. The employee is entitled to any severance money, accumulated holiday, or benefits to which she would usually be eligible.
An example case of Maternity Leave related Dispute:
The case of Moday vs. Bell Mobility[1], in which Moday, having worked for 11 years with Bell Mobility, got a notice of termination from Bell Mobility during the course of her maternity leave. Bell Mobility claimed that it had removed Moday’s employment and all the equivalent occupations owing to reduction disallowing her to return to similar opportunities. Amid this instance, in its restructuring, Bell Mobility lost about 220 employees. Although Moday was given severance by Bell Mobility along with a termination package that surpassed the standards of the Canada Labor Code, she filed an action for unlawful dismissal against Bell Mobility. The arbitrator rejected the complaint of Moday. It found that when an employer terminates the employment of an employee, and there are no comparable jobs to be offered, the right to be re-established does not prevail over the employer’s right to be reorganized.
The disadvantage of an employer that terminates a worker while on leave may be a costly choice. The employer must pay, at a minimum, the sums laid out in the termination and severance pay as required under the law. The employer is also likely to pay legal costs if the employee takes civil action against them or lodges a complaint before the Human Rights Tribunal. An employer is expected either to pay an employee voluntarily above the minimal legislative requirement to avoid litigation or is compelled to do so in the event of a lawsuit being unsuccessful. For an employer, this implies that, while it may legally operate within the limits of law in terminating an employee’s employment on leave in certain situations, terminating the job may cost considerably more than dismissing an employee who is not on leave.
If you have faced wrongful termination whilst being on maternity leave, contact De Bousquet PC, Hamilton's #1 Rated Employment Lawyer and they will be happy to assist you in finding the justice you deserve.
[1] 2013 CarswellNat 393.
