It raises questions around what constitutes a breach of the ESA
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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 6:00am.
TP left on maternity leave for the birth of her third child around mid-December 2013. Her twelve months of combined pregnancy and parental leave was to end on December 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 January 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 8:30am 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 10:00am to 5:00pm. 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 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 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 8:30am daily was the remaining comparable position available for TP. Had she not taken her leave of absence, he position still would have changed, requiring her to begin at 8:30am daily.
Constructive Dismissal not Established
In contrast to the analysis under the ESA, 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 8:30am 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
CCPartners has blogged on the two human rights decisions closely examined by the Court in this case. You can read those blogs here and here.
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 cooperate 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 $54,000.00 of the employer’s legal fees.
You can read the entire decision here.
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:
The lawyers at CCPartners have extensive expertise and experience with advising our employer clients in respect of employment standards, common law, and human rights obligations.
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