Discriminatory Termination of Employment
A typical scenario employment lawyers encounter is a client whose employment is terminated by the company in the following scenarios:
- before, during or immediately after a maternity leave or medical leave of absence
- complaining about workplace harassment and bullying
- requesting workplace accommodations related to a protected human rights ground (e.g., disability or family obligations).
The general question: Is it lawful for an employee to be terminated in any of these situations?
The general answer is (not surprisingly): “It depends”. While an employer cannot penalize an employee for complaining about workplace harassment, deciding to take a job-protected leave of absence (e.g., maternity leave), or requesting reasonable human rights accommodation in the workplace, they can terminate employment “without cause” for legitimate business reasons that have absolutely nothing to do with discrimination (treating them unfairly and negatively).
Fired While on Maternity Leave
Occasionally, when an employer terminates an employee’s job while on a maternity leave, the employee is told their job has been made “redundant,” or that their position “has been eliminated” or “no longer exists.” In some cases, this may be lawful – in others, not so much.
Far too often, employers mistreat female employees by unfairly dismissing them from their job, rather than respecting their obligation to support them through their maternity leave and facilitating their return to work. For instance, I have represented female employees in severance package reviews or wrongful dismissal claims who were highly successful with a history of strong performance and various promotions, only to then suddenly face poor treatment and discrimination after announcing their pregnancy and becoming an inconvenience to the employer.
Under Ontario’s Human Rights Code and the Employment Standards Act, 2000, an employer is required to give an employee their job back after they return from an authorized leave of absence, such as a maternity leave or parental leave. If the job is no longer available for legitimate business reasons unrelated to the leave, the employee must transferred to a suitable, similar position.
Although the employer’s “duty to accommodate” by placing the employee in their original job is generally preferable, it may not always be possible. In some cases, it may be more appropriate to transfer a returning employee to a different job in the same organization. However, the employer must ensure that its decision is not based on the employee’s maternity or parental leave, and that it is not actually penalizing the employee for taking a job-protected leave of absence. Otherwise, an employee may have grounds for a human rights (discrimination) complaint against the employer.
The Employer’s Reason for the Termination is the Important Factor
In discrimination claims, the “reason why” your employment was really terminated is the key issue. If you are an employee whose job was “eliminated” or made redundant while are on a maternity leave or disability leave, the question of whether the employer’s conduct is lawful will depend upon the specific facts of each case. Broadly, employees who are on maternity leave (or any other job-protected leave) have the following rights that should always be discussed with an employment lawyer for specific legal advice in their case:
- the right to not be dismissed for a reason connected with the fact that they are on a job-protected leave of absence
- the right to not be subjected to unfavourable treatment (discrimination) because they have taken a job-protected leave of absence
- the right to reinstatement to the position he or she most recently held with the employer if it still exists – or to a “comparable position” if it no longer exists (if the position still exists, the employer has no choice but to reinstate the employee to it).
Contact Bune Law for Help
If you are an employee who is pregnant, and your employer is seeking to make your job redundant, determining whether your situation involves discrimination by your employer depends on the facts and context of your situation. Generally, if you can show sufficient facts from which a court of law or human rights tribunal could conclude that your dismissal was discriminatory, then you could have grounds for a successful human rights complaint. In all cases, it is important to review your situation with an employment lawyer to discuss your options.
At Bune Law in Toronto, you will be provided with experienced legal advice on a wide variety of employment matters, including what steps to take if your employment was terminated while on maternity leave or disability leave. The experienced employment lawyer at Bune Law takes pride in a reputation for excellence in client service. Call 647-822-5492 for a consultation.
If you are an employer, you should speak with an employment lawyer to discuss your options before making the decision to terminate employment and obtain the proper termination documentation for your employee to avoid a discrimination claim.
If you are an employee who has been terminated with or without cause, you should seek legal advice even if you have a written employment agreement that appears to restrict your notice/severance entitlements. You may be entitled to more generous severance compensation under common law.
No matter which side you are on, our employment lawyer is ready to assist with your case. Don’t hesitate to reach out to Bune Law at 647-822-5492.
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