The Cost of Terminating a Pregnant Employee
A Pregnant Employee’s Rights
In Ontario, any woman who is hired at least 13 weeks before the date her baby is expected to be born is entitled to take a pregnancy leave of up to 17 weeks followed by a parental leave of up to 35 weeks. She also has the right to return to her job (or to a comparable job if her job no longer exists) following the leave.
An Employer’s Rights
An employee must give her employer at least two weeks’ written notice before beginning her pregnancy leave. An employee can tell her employer when she will be returning to work, but she is not required to do so.
She can begin the leave earlier than she originally told her employer if she gives her employer new written notice at least two weeks before the new, earlier date.
A pregnant employee can return to work earlier than scheduled by providing her employer with 4 weeks notice of an early return to work.
If an employee wants to resign before the end of her pregnancy leave, or at the end of the leave then she must give her employer at least four weeks’ written notice of her resignation.
Small Business Exception?
This law applies to all employers; there is no exemption for small employers.
The Cost of Terminating A Pregnant Employee
We sometimes receive calls from employers who want to terminate the employee who is on a pregnancy leave and keep the employee’s replacement. This is generally a very bad idea.
The terminated employee can file a complaint under the Employment Standards Act and, if successful, the employer can be ordered to pay the employee significant damages. The employee can file her complaint to the Ministry of Labour and she can represent herself. In other words, it takes very little time and no cost to file this kind of complaint.
The Ministry of Labour can order the employer to reinstate the employee with back pay. If not, an employer can be ordered to pay the following damages:
(i) direct wage loss;
(ii) vacation pay on wage loss;
(iii) loss of job/loss of reasonable expectation of employment (usually one month per year of service); and
(iv) damages for emotional pain and suffering.
In one case, an employer was ordered to pay damages for loss of employment insurance benefits.
Damages are not limited to $ 10 000 which is usually the maximum an employer can be ordered to pay under the Employment Standards Act.
What is an Employer to Do?
- An employer must respect a pregnant employee’s right to decide whether or not to return to work after her leave. In our experience, it is very difficult to predict whether or not an employee will return to work.
- An employer can write to an employee four (or more) weeks before the end of the pregnancy/parental leave and remind the employee that she is required to provide the employer with at least four weeks’ written notice of resignation if she is not returning to work following her leave.
- An employer should make sure that it requires any replacement employee to sign an employment contract with a termination clause. This clause will allow the employer to terminate the replacement’s employment on short notice if the pregnant employee returns to work earlier than expected.
If you have any questions about managing a pregnant employee, please contact our managing partner, Doug MacLeod, at 416 317-9894 or [email protected]
In the recent decision of Andros v Colliers Macaulay Nicolls Inc., the Ontario Court of Appeal (“OCA”) found yet another termination clause to be unenforceable. In this decision, the OCA reaffirmed and clarified various principles surrounding the enforceability of such clauses.
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