The Cost of Not Reinstating a Woman to her Job After She Completes a Pregnancy Leave

We receive calls from employers who have hired a replacement for an employee who has gone on pregnancy leave and want to keep the replacement.

When we tell these employers that the person on leave has the right to return to her job (or a comparable one if it does not exist) these employers are sometimes not amused.

Some employers try to avoid these obligations by reorganizing the workforce but this kind of strategy has not worked in many cases.

An approach adopted by a dentist in Barrie is such a cautionary tale.

Partridge v Botony Dental Corporation

Facts

When Partridge returned from her second maternity leave in July 2011, her employer unilaterally demoted her from her former position of office manager, which she had held for over four years, to her original position of dental hygienist. When Partridge reminded her employer of her obligations under the Employment Standards Act to return her to her former position, the employer refused to do so, despite the position being available. The employer also increased Partridge’s hours knowing this change would create a conflict with her children’s day care, and then terminated her employment, allegedly for cause.

Trial Judge

The trial judge concluded:

(1) the employer did not have just cause to dismiss Partridge;

(2) Partridge was entitled to a twelve-month notice period; and

(3)   the employer had discriminated against Partridge under the Human Rights Code and awarded her  $20,000 in general damages.

For more information on the trial decision, click here.

The Court of Appeal

The employer appealed this decision to the Ontario Court of Appeal which held:

 (1) No Just cause

The employer argued that Partridge’s removal of two patient day sheets from the employer’s premises in breach of her employment obligation and her steps to set up a competing business constituted just cause. The appellate court disagreed: although Partridge’s removal of the records was a breach of her employment obligations, the trial judge found that her motivation in taking these records was to secure evidence of her reduced hours, not for setting up a competing business. Because there was no evidence that any confidential information was disclosed to third parties, or that there was harm to the employer or its patients, the trial judge concluded that this isolated incident did not amount to just cause.

With regard to setting up a competing business, the trial judge found that Partridge did not solicit the employer’s employees or patients, that most of her planning with another employee occurred outside of the office, and that Partridge ultimately abandoned these plans. Essentially, the employer’s dismissal of a senior employee with more than seven years’ service and an otherwise unblemished employment record was not warranted in these circumstances.

(2) Reasonable notice of 12 months was appropriate

The appellate court did not interfere with the trial judge’s award of 12 months’ reasonable notice. The notice period was reasonable given that Partridge was wrongfully terminated after over seven years of service. By the time of trial, three years after her termination, she remained unable to find comparable full-time employment, despite her efforts.

The appellate court commented that the employer was partly responsible as it had made serious allegations of dishonesty and disloyalty and had stated these allegations on her record of employment. Therefore, the appellate court did not interfere with the trial judge’s award.

(3) Damages for Family Status Discrimination Upheld

The appellate court also saw no error in the trial judge’s award of $20,000 as compensatory damages under the Ontario Human Rights Code. Although this amount was on the high end, it was clearly within the range supported by other cases and consistent with the employer’s willful misconduct.

The employer argued that there was no evidence to support the trial judge’s findings that the respondent could not adapt her childcare responsibilities to her new work schedule or that the childcare arrangements that she put into place upon her return to work were not sustainable. The appellate court disagreed: Partridge presented evidence of a very complex arrangement of relatives and friends whom she had asked to pick up her children from daycare; such an arrangement was not sustainable. The appellate court concluded by noting that the employer’s improper actions caused injury to Partridge’s dignity, feelings and self-respect, and also materially affected her family’s economic security because of their financial dependence on her salary. Therefore, the $20,000 award for compensatory damages was justified.

Lesson to be learned:

An employee has a right to return to her same job (or a comparable one if it no longer exists) following a pregnancy leave and an employer assumes considerable legal exposure if it does not comply with this obligation.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers and employees on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]