Written Notice of Termination for Employees off Work May Not Satisfy ESA Requirements

Must an employer provide an employee absent from work (whether for disability reasons or on account of maternity leave) with actual cash in lieu of notice, or is written notice of termination sufficient?

In a blog post earlier today on the Employers’ Edge it was reported that:

A recent decision of Arbitrator Randy Levinson found that the Employment Standards Act, 2000 (“ESA”) does not require an employer to pay termination pay to disabled employees if the employer wishes to provide written notice of termination instead.  In Quality Meat Packers Limited and the United Food and Commercial Workers Canada, Local 175 (as yet unreported), Arbitrator Levinson based his decision on the fact that the disabled employees did not provide any services to the employer and were therefore not entitled to any compensation.

For the reasons that follow I find myself at odds with that decision.

Considering Maternity Leave

Maternity leave is a hot topic, so I will focus upon it. As is set out in my other posts (Can I be Fired for Being Pregnant? and Fired After Maternity Leave) pregnancy and paternal leave are both protected forms of leave of absence from the workplace pursuant to the provisions of both the Ontario Employment Standards Act, 2000 and the Canada Labour Code. For more information on that topic, please see those earlier posts.

A common question is whether an employee can be fired while on maternity leave, and if so how.

Canadian courts have frequently considered the question. The most commonly cited case on point is Whelehan v. Laidlaw Environmental Services Ltd., 1998 CanLII 6137 (BC SC). In that case the Honourable Madam Justice Allan of the British Columbia Supreme Court (equivalent to the Ontario Superior Court of Justice) decided that an employer could not legally provide working notice to an employee that was absent from active employment on account of pregnancy leave, Her Honour wrote that:

In [an earlier case,] this Court held that any period of notice given to employees cannot coincide with maternity leave. (Para. 11.) [Emphasis added.]

Justice Allan reached her conclusion by examining the purposes of reasonable notice and maternity leave:

It is useful to compare the underlying purposes of reasonable notice and maternity leave. The law requires employers to provide dismissed employees with compensation for an adequate period of time to enable them to pursue suitable reemployment without unreasonable financial disadvantage. The philosophy behind maternity leave is that women who are pregnant are entitled to a leave of absence from their jobs in order to accommodate childbirth and they are entitled to the assurance that their job tenure is secure during the period of their absence. (Para. 18)

In deciding that the written notice provided by the employer in that case was not sufficient, Justice Allan held that:

The notice period provided by [the employer] was of no practical assistance to [the dismissed employee] as she was approximately seven months pregnant at the time and unable to seek employment. (Para. 17.) [Emphasis added.]

A similar conclusion was reached by the New Brunswick Court of Queen’s Bench (again equivalent to the Ontario Superior Court of Justice) in the 2011 case of Donnelly v. Kings Landing, 2011 NBQB 267 (CanLII). In that case the Honourable Madam Justice Paulette C. Garnett, in reviewing a decision of a New Brunswick labour adjudicator, held that:

I agree with the reasoning in [several earlier decisions, including Whelehan.] Maternity leave is intended to give mothers time to care for their babies without having to report to work. Notice of dismissal is intended to give an employee a reasonable amount of time to secure alternative employment. In seeking that employment, the employee must be prepared, if the opportunity arises, to go to work. A mother on maternity leave is not required to go to work therefore it cannot be said that she is both on leave and on notice at the same time. The two concepts are incompatible. (Para. 34) [Emphasis added.]

Commentary

So does this mean that the decision in Quality Meat Packers Limited is wrong? I don’t know. I haven’t had a chance to actually review that decision or the reasons for it. It is at least possible, however, that it could be wrong.

Returning to the point of maternity leave, it would appear settled that employers cannot provide parents who are absent from work on account of maternity leave or parental leave with working notice. Practically, what that means is that if an employer absolutely must terminate the employment of an employee absent from work, say for example if the employer is going out of business while the employee is away, the employer must provide the employee with an actual payment instead of working notice. The same is likely true of all forms of protected leaves of absence. (See also my post concerning frustration of employment contracts: Frustration of Contract need not be Frustrating.)

Takeaways

If you are an Ontario worker, and your employer has provided you with notice of termination whether you are actively at work or more to the point of this post whether you are absent from work on account of maternity leave, parental leave, or sick leave, it is likely prudent to seek professional legal advice about your rights.

If you are in Ottawa or the Greater Toronto Area, I would be happy to be of service to you and can be reached at sbawden@kellysantini.com or 613.238.6321.

If you are an Ontario employer and are considering terminating the employment of any of your employees, but especially if those employees are on a form of protected leave of absence it is likely prudent to seek professional legal advice before doing anything.

The professional employment lawyers at Kelly Santini LLP, including me, would be happy to be of service to you.

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As always, everyone’s situation is different.  The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals. He is a trustee of the County of Carleton Law Association for 2013.