This blog is the final installment of a four-part series by Sultan Lawyers focused on employment issues specific to pregnancy and parental leave in Ontario. To view the previous installments, please click below:
- Part 1: Can I Be Fired While on Leave?
- Part 2: Missed Career Opportunities While on Leave
- Part 3: Am I Entitled to My Pre-Leave Role?
While employers may be severely restricted in their ability to dismiss an employee on pregnancy or parental leave, employees may, nonetheless, be concerned about their employment security while away from the workplace.
Below we review the most common questions we have received in relation to parental leave and terminations of employment.
Can my employer terminate my employment while I am on parental leave?
Generally, yes.
While employees on maternity leave have the right to reinstatement to their pre-leave role or a comparable position following the completion of their leave, there are some exceptions that may supersede this right. This may include where the employee’s pre-leave role is eliminated through the restructuring of the employer’s business and there is no comparable role to which to return.
Where the employer is successfully able to establish a bona fide elimination of an employee’s role, the employee remains entitled to reasonable notice of the termination of their employment or pay in lieu of notice to financially support themselves while seeking new employment.
This is, however, a high threshold to satisfy, and where an employer cannot establish a bona fide elimination of an employee’s role, the employee may have a claim for wrongful dismissal.
Further, if the termination of an employee’s employment is directly connected to the employee’s pregnancy and/or parental leave, a human rights violation arises, and the employee may be entitled to seek reinstatement from the employer as well as other damages.
I have been dismissed while on parental leave. What are my entitlements?
Employees who have been terminated while they are on parental leave are entitled to reasonable notice (or pay in lieu of notice) and continued benefits for the duration of the parental leave and notice period.
Reasonable Notice Period
Notice and/or pay in lieu of notice is intended to assist an employee (financially or otherwise) while they seek out new employment following the termination of their previous employment. What is considered reasonable notice depends on a variety of factors including, but not limited to, the following factors:
- The employee’s age;
- The years of service;
- The characterization of employment; and
- The likelihood of obtaining comparable employment.
Further, a recent court decision, Nahum v. Honeycomb Hospitality, recognizes that pregnant employees may be entitled to an increased notice period by virtue of the negative impact pregnancy may have on a person’s ability to find alternative employment right away.
It is also important to note that, generally, an employee’s reasonable notice period will not start until after the completion of the maternity leave. As a result, employees are generally entitled to complete their maternity leave before the reasonable notice period commences.
Continued Benefits
While an employee is on maternity leave, employers must still contribute to all of the same benefit plans that an employee was entitled to while at work (i.e., health and dental benefits, pension, life insurance, etc.).
My employment has been terminated while on parental leave. Will this impact my entitlement to Employment Insurance (“EI”) benefits?
The answer will vary on a case-by-case basis.
To qualify for employment insurance, employees need between 420 and 700 hours of insurable employment based on the unemployment rate in their area during the qualifying period.
If the timing of an employee’s termination puts them in a position of not acquiring enough insurable hours during the qualifying period, the employee may not qualify for EI benefits.
It is important that employees obtain information about their rights to EI benefits if they are considering taking a pregnancy or parental leave under the Employment Standards Act, 2000.
If you have been dismissed while on pregnancy or parental leave, you may have a claim for wrongful dismissal or related to a human rights matter. If you have any questions relating to pregnancy and/or parental leave, including in relation to your rights and your employer’s obligations, please contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or submit a contact form.
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