Pregnancy sinks career
Employers contemplating terminating an employee freshly returned from a maternity or paternity leave should always tread carefully. The reasons for the termination will be scrutinized closely. In no way, shape or form should the employee’s leave play a part in that decision.
Sally had worked for a mobile cellphone company for about 11 years when she began her second maternity leave. Not too long before she had been made a business analyst. There had been three people on her team but about a month before her leave ended, her boss got approval to make it a four-person team and when Sally came back her replacement would stay.
What the boss didn’t know, and could not know, was that a few weeks later there would be a corporate restructuring and she would be told to reduce the team from four to three.
When Sally returned to work, she was terminated. The person who had replaced her and become a permanent fourth member of the team was kept on.
Sally filed a complaint pursuant to the Canada Labour Code for unjust dismissal.
When called upon to justify the choice of Sally as the person to be out of work, her boss indicated she considered the seniority of both employees and their duration of experience in the position.
The new member of the team had two more years seniority than Sally. The replacement had performed the role for 19 months, including covering for Sally’s leave, time in a similar position and the pre-leave training time. Sally had only been in the role for three months before her leave.
The boss gave evidence that those were the only two factors and it had nothing to do with her personal impressions or views of Sally or the replacement.
Ultimately, Sally lost her case because the employer convinced the adjudicator the position was truly eliminated and the factors considered were objective and unrelated to the leave.
When the matter was appealed to a higher court, it noted the adjudicator made an error by not notionally granting Sally experience in the position for the 12 months of her leave but decided that the replacement would still have had more experience in the position. It upheld the adjudicator’s decision and Sally lost again.
The only reason Sally’s replacement had more time on the ground in the job was because Sally got pregnant and took a leave. If that had not happened, the replacement would not have been there for at least the first 11 months of the leave before the team was expanded to four. If Sally had been given credit for being in the job, albeit not present, so as to neutralize the effect of her leave and the replacement had not been given credit for experience she gained as a result of Sally’s pregnancy, things might have been different. Sally would have had more experience in the job. She still would have had less seniority. Both the adjudicator and the courts refused to discount the replacement’s time in the office at the job that resulted from Sally’s leave. I think they made a mistake.
While I understand the employer’s focus on actual time in the job, weighed against that should be the societal interest in protecting parents from ill consequences flowing from their leave. At the end of the day, it is clear that if Sally had not been pregnant, she would not have lost her job. That is exactly the kind of circumstance that employment and human rights legislation is supposed to prevent. Sometimes the courts get it wrong.
This article was originally published by The Hamilton Spectator.
