Tom Stefanik discusses reinstatements following leaves of
absence as part of the Torkin Manes LegalPoint Video Series.
Every employer, from time to time, grants employees leaves of
absences. These vary according to the individual employee and the
circumstances for the leave. The most common form of leave which is
statutorily protected is that of maternity leave.
The Employment Standards Act, which is similar to many
provincial statutes, requires that upon the conclusion of an
employee's maternity leave, the employer shall reinstate the
employee to the position the employee most recently held with the
employer, if it still exists, or to a comparable position, if it
does not. Furthermore, the Act also states that this
obligation does not apply if the employment ended solely for
reasons unrelated to the leave.
At first blush, this sounds fairly simple. In a completely
uncomplicated world (in which we do not live), where an employee
takes a maternity leave and is replaced by someone else, the
employer is obliged to reinstate the employee upon conclusion of
the leave to that position. Whether the employer wishes to retain
the employee who replaced that individual is entirely up to that
But, as you know, life is not so simple. Jobs today have
different demands and requirements depending upon technology,
demands of customers, and the economic health of the employer.
While you may have heard that an employer must terminate a junior
employee, or perhaps someone else, in order to comply with its
obligation to reinstate an employee on a maternity leave, this is
really an oversimplification and not necessarily true. The Ontario
Labour Relations Board, for example, has said very clearly that the
Act is designed to protect employees on leave, and not to
provide those employees with greater rights. In other words, the
scheme of the Act does not create an absolute right to a
job for anyone who has taken a leave.
And because the world today is more complicated than it used to
be with respect to job content and job qualifications, we often see
scenarios where one or more of the following happens:
part of the job functions disappear
while the employee is on leave, thus resulting in the employer not
requiring a full-time person in that position;
the nature of the job changes to the
extent that the employee on leave would require training, and the
employer wishes to assign the job to someone already in its
workforce who is trained with respect to those functions;
the employer decides, in good faith,
that it does not require a full-time person in that job, for
whatever reasons, and transfers those functions to an existing
employee while the employee is on maternity leave;
the employer decides, in good faith,
that it no longer wishes to have an existing employee fill that
position. An example might be where it decides to contract out the
work to a third party. It then decides this was not perhaps a very
wise business decision and wishes to bring the work back into its
organization after it has terminated the employee who was on
In all of these scenarios, it is quite possible for the employee
who may have lost her job either during the maternity leave or upon
conclusion of the leave, to file a complaint alleging that the
employer did not comply with the legislation and failed to
reinstate the employee to her employment. Each of these fact
scenarios is somewhat complicated but you can be certain that if a
complaint is filed, the applicable Tribunal will carefully
scrutinize the employer's motives, the facts, and the timing of
all of the events. Should the employee be successful in alleging
that the employer has breached the Act, the employee may
be entitled to not only to reinstatement to the job, but also to
substantial damages, which will almost certainly be well in excess
of her common law entitlement to reasonable notice.
It is therefore prudent and important that you seek advice
whenever considering the termination of an employee who is on or
has just returned from a statutorily protected leave and we can
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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