Pregnancy & Parental Leave, Pt. 3: Am I Entitled to my Pre-Leave Role?

This blog is the third installment of a four-part series by Sultan Lawyers focused on employment issues specific to pregnancy and parental leave in Ontario. The first installment can be read here, and the second can be viewed here. 

Employees who have taken a pregnancy or parental leave often face issues with re-integration into the workforce following their leave.

Below we discuss the various rights that employees have with respect to returning to work following a pregnancy or parental leave, including the right to make a claim of constructive dismissal, and when/how those rights might be pursued.

The Employment Standards Act

Pursuant to the Employment Standards Act (“ESA”) in Ontario, in most cases, an employee who takes a pregnancy and/or parental leave is entitled to:

• the same job the employee had before the leave began; or
• a comparable job if the employee’s old job no longer exists.

Many employees face issues with returning to work following their leave and in particular with respect to their employers denying the existence of their previous role or with respect to the nature of their job duties upon return. We discuss these common issues in turn below.

My Employer Says My Job Does Not Exist Anymore

If an employee is ready to return to work following their leave but their job no longer exists and a comparable job is truly not available, then an employer may be permitted to terminate the employee’s employment.

It will be important, however, to scrutinize the employer’s actions closely.

Employers are permitted to reorganize the workplace while an employee is on a leave, but they should be sure to not make re-organization decisions without considering the employee on leave or to make decisions that are detrimental to the employee because they are on a leave.

Employers are not permitted to, for example, promote another employee permanently into the employee’s job while the employee is away on pregnancy and/or parental leave. Employees who are on a leave should also generally be included in workplace re-organization discussions and should be given the opportunity to apply for new positions.

If an employee faces termination of employment, the reason for the termination should not be in any way related to the fact that an employee took a leave.

Employees should always seek out legal advice relating to any package they receive at termination of employment as oftentimes what employees are initially offered is not entirely in line with their potential entitlements under the law.

The Job I Returned to is Not the Same

Employees are entitled to return to their old job or a comparable job following their pregnancy and/or parental leave.

If an employee returns to a position with the following changes (for example), they should seek out legal advice immediately:

• significantly fewer job duties;
• with job duties that have been downgraded or changed significantly; or
• with less seniority or capacity for advancement in their role

If an employee experiences significant changes to the terms of their employment, then they may be entitled to bring a claim for constructive dismissal.

If the employee can connect the changes to their job duties to the fact that they took a leave then they may be entitled to damages connected to their human rights.

Further, if an employee is concerned that their employer has not complied with the ESA in returning them to a position that is not comparable to the role they left to take a pregnancy and/or parental leave then they may be permitted to file a Ministry of Labour complaint.

If you believe you have been wrongfully dismissed and/or are seeking advice in relation to the position you were returned to following a pregnancy and/or parental, please contact Toronto employment lawyers, Sultan Lawyers, at 416-214-5111 or here.