Leave it alone: Ontario court dismisses 3 claims by employee in respect of her maternity leave

Employer not required to change job upon employee's return; employee had childcare options to accommodate start time
By Mike MacLellan
|employmentlawtoday.com|Last Updated: 10/31/2018

The Ontario Superior Court of Justice has recently released a decision in which it rejected an employee’s claim that her employer breached its legal obligations with respect to her maternity leave. The decision raises important issues surrounding employment standards, human rights, and the common law. All in all, it is a good illustration of how being prepared and reasonable may be the best defence for any employer.

Custom Granite & Marble Ltd. operates a small business fabricating and installing granite for countertops and other uses. The plaintiff in this matter (TP) had worked for the company since May 2010, mainly as a scheduler. TP had two young children who required care before and after school. Her mother lived in the same household and was able to assist in providing care for the children, which was fortunate, because part of TP’s job as a scheduler required her to sometimes attend early for work, and also to take calls on a company-provided phone as early as 6 a.m.

TP left on maternity leave for the birth of her third child around mid-December 2013. Her 12 months of combined pregnancy and parental leave was to end on Dec.15, 2014, however in a series of text messages with her employer, TP advised that she was having trouble securing childcare. It was agreed that TP would return to work in the new year, but no definite start date was established.

TP attended at the employer’s office on Jan. 6, 2014, to meet with management regarding her return to work. She was advised that due to changes in the business during her leave of absence, she would now be required to attend for work by 8:30 a.m. every day. Otherwise, her pre-leave employment terms were unchanged. TP advised her employer for the first time during this meeting that she had a falling out with her mother, and that her mother no longer lived in the same house and was no longer assisting with childcare. While TP had arranged for full-day childcare for her infant child, her two school-age children only had after-school care. Accordingly, she stated that she wanted to work from 10 a.m. to 5 p.m. The employer was not able to accommodate that request, and TP advised that she would attempt to secure before-school childcare for her older children.

Ultimately, TP never returned to work. She claimed that she was unable to do so because the employer would not accommodate her family status needs. TP filed a claim seeking remedies based on three different theories:

  • The employer breached the Employment Standards Act by failing to return her to her pre-leave position.
  • The employer had engaged in constructive dismissal by unilaterally changing a material term of the employment contract to the detriment of PT.
  • The employer breached the Human Rights Code by failing to accommodate PT’s family status obligations.

The court dismissed each of the three claims, and rejected her request for pay in lieu of notice equal to six months’ pay, plus $20,000 in punitive damages.

No breach of employment standards obligation to employee returning from leave

Section 53(1) of the Ontario act states that an employer must reinstate an employee to the position she held prior to her pregnancy and parental leave, if it exists, or to a comparable position if it does not.  The court was satisfied on the evidence at trial that the employer’s business had undergone changes during the leave of absence. The employer had complied with the Employment Standards Act because the scheduler job beginning at 8:30 a.m. daily was the remaining comparable position available for TP. Had she not taken her leave of absence, her position still would have changed, requiring her to begin at 8:30 a.m. daily.

Constructive dismissal not established

In contrast to the analysis under the act, whether a constructive dismissal has occurred at common law does not consider the reasons for which the employment contract has changed. However, the Court agreed with the employer that TP was always required to attend at the office early at the discretion of management. The discretion of management now was simply that she would be required to start at 8:30 a.m. daily. Based on the available evidence, the court ultimately concluded that TP no longer wished to work for the employer when she lost access to childcare coverage from her mother. There was no constructive dismissal in this case.

No breach of the human rights code

The court paid particular attention to the facts that TP had the financial resources to afford appropriate childcare for each of her kids, and her admissions that there were a number of pre-school childcare options available to her in her community, and the hours she was being asked to work were reasonable. Essentially, she was failing in her own duty to co-operate in the accommodation process, both by not availing herself of available childcare, and also by being untruthful with her employer in respect of her childcare options. The latter factor frustrated the employer’s ability to be able to assess and offer reasonable accommodation.

At the end of the trial, TP’s claims were all dismissed, and she was even ordered to pay over $54,000 of the employer’s legal fees.

Takeaways for employers

The outcome of this case should not be surprising given the established case law and application of both the Employment Standards Act and Human Rights Code, but it is no less refreshing when an employer is vindicated by the courts. This decision affirms certain standards which, if met, will keep your company onside the law:

  • Know and understand your obligations to reinstate an employee to work after a valid leave of absence. If the same job does not exist, return them to the job they would have occupied had they not taken the leave.
  • Constructive dismissal occurs when an employer unilaterally changes a fundamental term of the employment relationship, to the detriment of the employee. Similarly, and employee is not entitled to insist on a fundamental change to the terms of employment to the detriment of the employer.
  • Employers must accommodate the family status obligations of its employees to the point of undue hardship. However, employees (and their unions, where applicable) must co-operate in the accommodation process. This cooperation requires employees to take reasonable measures to resolve their family status obligations, and to provide true and proper information to their employer.

For more information see:

  • Peternel v. Custom Granite & Marble Ltd., 2018 CarswellOnt 13444 (Ont. S.C.J.).

Michael MacLellan is a partner with CCPartners in Brampton, Ont., practicing labour and employment law. He can be reached at (905) 874-9343 ext. 251 or mmaclellan@ccpartners.ca.

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