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Reinstatements Following Leaves of Absence with Tom Stefanik


Every employer, from time to time, grants employees leaves of absences. These vary according to the individual employee and the circumstances for the leave. The most common form of leave which is statutorily protected is that of maternity leave.

The Employment Standards Act, which is similar to many provincial statutes, requires that upon the conclusion of an employee’s maternity leave, 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. Furthermore, the Act also states that this obligation does not apply if the employment ended solely for reasons unrelated to the leave.

At first blush, this sounds fairly simple. In a completely uncomplicated world (in which we do not live), where an employee takes a maternity leave and is replaced by someone else, the employer is obliged to reinstate the employee upon conclusion of the leave to that position. Whether the employer wishes to retain the employee who replaced that individual is entirely up to that employer.

But, as you know, life is not so simple. Jobs today have different demands and requirements depending upon technology, demands of customers, and the economic health of the employer. While you may have heard that an employer must terminate a junior employee, or perhaps someone else, in order to comply with its obligation to reinstate an employee on a maternity leave, this is really an oversimplification and not necessarily true. The Ontario Labour Relations Board, for example, has said very clearly that the Act is designed to protect employees on leave, and not to provide those employees with greater rights. In other words, the scheme of the Act does not create an absolute right to a job for anyone who has taken a leave.

And because the world today is more complicated than it used to be with respect to job content and job qualifications, we often see scenarios where one or more of the following happens:

(a) part of the job functions disappear while the employee is on leave, thus resulting in the employer not requiring a full-time person in that position;

(b) the nature of the job changes to the extent that the employee on leave would require training, and the employer wishes to assign the job to someone already in its workforce who is trained with respect to those functions;

(c) the employer decides, in good faith, that it does not require a full-time person in that job, for whatever reasons, and transfers those functions to an existing employee while the employee is on maternity leave;

(d) the employer decides, in good faith, that it no longer wishes to have an existing employee fill that position. An example might be where it decides to contract out the work to a third party. It then decides this was not perhaps a very wise business decision and wishes to bring the work back into its organization after it has terminated the employee who was on maternity leave.

In all of these scenarios, it is quite possible for the employee who may have lost her job either during the maternity leave or upon conclusion of the leave, to file a complaint alleging that the employer did not comply with the legislation and failed to reinstate the employee to her employment. Each of these fact scenarios is somewhat complicated but you can be certain that if a complaint is filed, the applicable Tribunal will carefully scrutinize the employer’s motives, the facts, and the timing of all of the events. Should the employee be successful in alleging that the employer has breached the Act, the employee may be entitled to not only to reinstatement to the job, but also to substantial damages, which will almost certainly be well in excess of her common law entitlement to reasonable notice.

It is therefore prudent and important that you seek advice whenever considering the termination of an employee who is on or has just returned from a statutorily protected leave and we can help.

Tom Stefanik discusses reinstatements following leaves of absence as part of the Torkin Manes LegalPoint Video Series.