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THE QUESTION
I hired a new employee for an 18-month parental leave cover. This new person’s performance far exceeds the person who left for parental leave. What are the rules around keeping the new person? Could we have the original employee return for a period of time, like six months, and then terminate them? We are a very small business, so we can’t create a new permanent role for the replacement person, but we could keep both for a short period of time. I have a record of the original employee underperforming from their last performance review before taking parental leave. What are my options?
THE FIRST ANSWER
Ryan Edmonds, principal lawyer, Ryan Edmonds Workplace Counsel, Toronto
For better or worse, our society has enacted laws that enshrine a new parent’s ability to take a leave of absence without consequence. While undoubtedly beneficial, these protections unintentionally shield those who might otherwise have faced discipline or discharge.
In Ontario, the Employment Standards Act (ESA) mandates that employees who take a protected leave must be reinstated to the same job they held before, or to a comparable job if the previous role no longer exists. The ESA also prohibits employers from penalizing an employee for taking a protected leave (this is known as “reprisal”).
Some employers think they can circumvent these rules by concocting elaborate plans to “restructure” a job or manufacture reasons to justify termination. At the same time, and as the reader correctly points out, employees should not be immune from legitimate performance issues unrelated to them taking a protected leave.
Fortunately (or unfortunately, depending on your perspective), the ESA imposes a heavy reverse burden on employers. This means if an employee alleges reprisal, the employer is presumed to have breached the ESA unless it can prove otherwise. As a result, employers face an uphill battle when it comes to allegations of reprisal.
That being said, if an employer, like the reader, can decisively show that the termination was completely unrelated to the leave, there’s no ESA violation. For instance, serious misconduct, such as theft discovered during the employee’s leave, would likely overcome the reverse onus.
Although people are unquestionably a business’s most valuable asset, given the risks involved, the reader should consult an employment lawyer if they intend to keep the replacement employee over the incumbent.
THE SECOND ANSWER
Pamela Connolly, employment lawyer, Nixon Wenger LLP, Vernon, B.C.
It’s important to understand that parental leaves are considered protected leaves in more than one sense. First, they are granted under provincial employment standards legislation. Employees who take statutorily protected leaves are entitled to return to their position, or a comparable position if their position no longer exists, at the conclusion of the leave. Further, family status is a protected characteristic under provincial human rights legislation. Therefore, ending employment at the conclusion of a parental leave would be considered a form of discrimination that is unlikely to be justified by pre-leave performance concerns. Both paths could reasonably lead to costly and time-consuming legal proceedings in addition to a standard wrongful dismissal claim.
I appreciate that, especially as a small business, every employee is integral and must pull their weight. You have identified a superior performer and it is difficult to reconcile ending their employment in favour of a less effective employee. However, as a society, we value giving parents protected time away from work to care for new family members. The original employee is legally entitled to return to their role.
If you keep both employees with the goal of exiting the original employee within months, there is a risk that the termination will be viewed as connected to the parental leave. There is no magic threshold, but the longer the original employee is back at work, the more tenuous that connection. Be sure to maintain good performance records to justify your decision.
An employee who has struggled with performance pre-parental leave may not be eager to return to work, recognizing their limited chance of success in the long term. This could open an opportunity to negotiate an amicable separation in exchange for a severance payment. There is a possibility of both parties achieving a positive outcome, but you should proceed carefully here, preferably with professional guidance, as initiating termination discussions may create the risk of various legal claims.
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