Is the right to be reinstated after pregnancy leave absolutely guaranteed? According to a recent decision from an adjudicator appointed under Part III of the Canada Labour Code, the answer is no.
In a decision passed to me by journalist, lawyer and fellow blogger Sheryl Smolkin, Re Moday and Bell Mobility Inc., 2013 CarswellNat 393 (Can. Arb.) Adjudicator Randi H. Abramsky held that a Bell Mobility employee whose position was eliminated while she was on pregnancy leave was not entitled to be reinstated to her position upon her return. More importantly that she was unable to advance a claim of unjust dismissal at all.
Facts of the Case
As is set out in the adjudicator’s reasons for decision, the facts of the case were not in dispute:
Ms. Moday began her employment with Bell Mobility on April 17, 2000. She held a variety of sales, customer service and administrative roles, including the role of Performance Management Coordinator (PMC), the position she held at the time of her termination. She began working in that job in 2009. The position provided administrative support to Team Leads, such as preparing and reviewing various audits for the Team Leads and scheduling coaching/huddle sessions. In early 2011, the PMC positions in Vancouver and Montreal were eliminated, leaving only three employees working as PMCs throughout the Company, including Ms. Moday.
In the Fall of 2011, the Company underwent a larger downsizing, eliminating over 200 management positions and 20 non-management positions, including the three remaining PMCs. According to the undisputed testimony of Ms. Jennifer Coculuzzi, Manager of Operations and Collections, some of the tasks performed by the PMCs were reassigned to the Team Leads, some were automated and some were discontinued. It is undisputed that the position no longer exists at the Company.
Ms. Moday began a maternity leave on August 21, 2011. She was off work for a few weeks before then due to illness, but her maternity leave began on the date her child was born. She expected to return to work on August 21, 2012.
On November 3, 2011, Ms. Moday was advised by Ms. Coculuzzi by telephone that her position had been eliminated as part of a larger organizational change, and that a severance package had been prepared and would be couriered to her. She was also advised that she would have a couple of options since she was on maternity leave. A contact person in Human Resources, Ms. Shirley Thomas, was identified for her to contact with any questions. The two other PMCs were also advised on November 3, 2011 of the elimination of their positions
The law considered by the adjudicator was the Canada Labour Code, a federal law applicable to only about 10% of workers in Ontario. The competing sections of that law considered in the Moday case were 209.1 and 242(3.1)(a)
Section 209.1(1) and (2) state that:
209.1 (1) Every employee who takes or is required to take a leave of absence from employment under this Division is entitled to be reinstated in the position that the employee occupied when the leave of absence from employment commenced, and every employer of such an employee shall, on the expiration of any such leave, reinstate the employee in that position.
209.1 (2) Where for any valid reason an employer cannot reinstate an employee in the position referred to in subsection (1), the employer shall reinstate the employee in a comparable position with the same wages and benefits and in the same location.
When Ms. Moday was not reinstated to her former position upon her return from her pregnancy leave she made a complaint of unjust dismissal (which is different from wrongful dismissal) under the Canada Labour Code. Section 240 of that Code, provides that:
240. (1) Subject to subsections (2) and 242(3.1), any person
(a) who has completed twelve consecutive months of continuous employment by an employer, and
(b) who is not a member of a group of employees subject to a collective agreement,
may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust.
The challenge to Ms. Moday was section 242(3.1)(a), which provides that:
No complaint shall be considered by an adjudicator under subsection (3) in respect of a person where… (a) that person has been laid off because of lack of work or because of the discontinuance of a function.
The issue that Adjudicator Abramsky was asked to resolve was whether section 242(3.1) was determinative of Ms. Moday’s issue or whether her rights as conferred by section 209.1 trumped that provision.
In resolving that section 242(3.1) was determinative, Adjudicator Abramsky wrote, with respect to an earlier adjudicator’s decision (see : Waywayseecappo First Nation v. Cooke (November 27, 2008), Doc. YM2707-7336 (Can. Arb.) that:
 The [previous] adjudicator's interpretation, posits a startling proposition — that the right to reinstatement after maternity and parental leave takes complete precedence over the Employer's right to reorganize the workforce. It treats it as an absolute right. This would place relatively young male or female employees off on parental leave in a vastly superior position to any other employee during a downsizing, including very senior workers or employees off on sick or disability leave. Much clearer language than [what currently exists] would be needed to require that result.
Ms. Smolkin asked me whether I thought the decision was correctly decided. I responded to her with the opinion that I believe that it was. As has been set out in this blog several times, if the reason for the termination is unrelated to the fact that the employee was on protected leave, then the fact that the employee was on leave should not be determinative of the issue.
Yes, the fact that an employee was on leave should be a factor to consider in any wrongful dismissal analysis (on this point see this post Pregnant Employees are Entitled to Greater Notice of Dismissal), but it is not a trump card guaranteeing anyone that they can never be fired.
For a case from the Human Rights Tribunal of Ontario in which a pregnant employee’s request for reinstatement after being fired was denied, consider the post Why the Human Rights Tribunal of Ontario may be the Wrong Place to Plead Your Wrongful Dismissal Case
Takeaways for Employees with Labour Pains
If you are an Ontario worker, are pregnant or are returning from maternity leave, and your employer has informed you that you are being fired, let go, or laid off, it may be prudent to seek a professional legal opinion on your rights. Even if your employer has not done anything legally wrong, you may still be entitled to a greater amount of notice (read: money.) The professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.
Takeaways for Employers with Labour Pains
If you are an Ontario employer and are considering terminating the employment of any of your employees, but especially if that employee is or was pregnant, it is likely prudent to seek professional legal advice before doing anything. The takeaway from this decision, is that simply because an employee is off on leave does not mean that the employer is ‘handcuffed’ from making business decisions.
The professional employment lawyers at Kelly Santini LLP, including me, would be happy to be of service to you.
For more on the topic of pregnancy leave rights see: Pregnancy Leave Questions.
To reach the author of this blog, Sean Bawden, email firstname.lastname@example.org or call 613.238.6321 x260. You may also use the contact box at the top of this page.--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.