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.

The Human Rights Tribunal of Ontario recently reported the decision in Maciel v. Fashion Coiffures, siding with the applicant who was terminated immediately following the announcement of her pregnancy. 

The press release by the Human Rights Legal Support Centre indicates that Vice Chair Naomi Overend noted Ms. Maciel's vulnerability in her decision by outlining that "She was young, just out of school, and coping with an unplanned pregnancy. This was to be her first full-time job, which she testified she was very excited about, making the experience that followed that much more distressing."

Follow this link to the Globe & Mail article on Ms. Maciel's ordeal.

A copy of the decision can be found by clicking on the link below.

Download Maciel v Fashion Coiffures doc

Whitten & Lublin is an employment law firm providing counsel to both employers and employees on a wide range of employment law issues.