Dismissal during or after Maternity Leave
danlublin | Monday, May 31st, 2010 | 1 Comment »There is a scam being run by employers across the country, and it is permitted by law.
Most employment law prohibit dismissal during or after maternity leave. Yet it happens anyway. This is because there are various “exceptions” in the legislation permitting dismissal where it is unrelated to the leave.
In Ontario, the Employment Standards Act, 2000 states:
53. (1) Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.
(2) Subsection (1) does not apply if the employment of the employee is ended solely for reasons unrelated to the leave.
What this essentially means is that where the employer has reasons to terminate an employee’s employment that are completely unrelated to the fact that the employee went on a pregnancy or parental leave reinstatement will not be required.
Although many employers try to fit employees within this exception, it is not meant to permit dismissal in cases that are not clearly unrelated to the leave. The question usually asked is, but for the leave, would the employee have lost their job?
In my Metro news article from last week, I discuss this in further detail.
Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which provides practical legal advice and advocacy for workplace issues.
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Hello, I was the Executive Director of a Non-profit Mental Health Agency and I went on Parental leave for a year. During this year I was being told that I would not be allowed to return so I filed a complaint with the Labor Board later to be withdrawn because I was not terminated that the time. I was approved for sick leave following my parental leave and was to return to work June 1, 2010. During my sick leave my employer refused to pay me my sick time, my banked lieu time or any of my banked vacation time. When I returned to work on June 1, 2010, I was immediatley laid off and told my job is redundant and I questioned who was running the organizationa and was told it was non of my business. (2010 Organizational review shows that two male individuals had occupied my position following my employment)I filed another complaint with the Ministry of labour and it is slowly pending)I am now in the process of filing a Human Right complaint for sexual discrimination and I would like to know how I should handle trying to get back sick time, vac time and lieu time that is owed to me and not covered under the Ministry. Three weeks ago an emplyee was sent to my home by my employer to offer me my job back; I accepted. I was asked to attend at my workplace by my employer to attend to some operational issues until I returned on October 18/2010 and I did. The membership, Employee and clients were informed by a thrid party consultant that I was returning to my job. I was then notified by telephone that I could not return to work until October 25/2010 because my employer wanted to conduct a meeting on October 20/2010 and they would be in touch. I was notified October 22/2010 by my employer that they were consulting a lawyer and I will not be returnning to work on Monday. I am extrememly disappointed and frustrated. I am broke and this has also affected my life, my family, my mental health, and everyone who knows me as a happy and outgoing person. I am tired of hoping and tired of fighting but I don’t want to give up. There needs to be some presidence for addressing this type of treatment. Someone please help me!!!