Maternity leave doesn’t count when it comes to notice periods

When and how should employers provide workers on maternity or parental leave with notice that their employment will be terminated?
By Stuart Rudner
|Canadian Employment Law Today

Dismissing a woman who is pregnant, or is returning from maternity or parental leave, is a minefield. Any suggestion the pregnancy, or the taking of leave, is the reason, or even part of the reason, for the dismissal will result in a finding of fault on the part of the employer. Even where the decision to dismiss was made for perfectly legitimate and defensible reasons, the employee will almost certainly take some sort of action against the employer.

Most employers know that employment standards legislation (in most jurisdictions) requires that at the end of pregnancy or parental leave, the employee be put back into the same position they held when the leave commenced. If, and only if, that position no longer exists, then the employer must offer a “comparable” position. If there is truly no comparable position, then the employer may be relieved of the obligation to continue employing the individual in question.

One issue that arises is when notice should be given if the employer is not going to be in a position to have the employee return. In other words, if the individual’s previous position no longer exists (and I mean really no longer exists — employers cannot avoid obligations by simply giving the position a new title), and if there is no comparable position, when and how should employers provide them with notice that their employment will be terminated?