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THE QUESTION
What happens if an employee goes on parental leave and, for whatever reason, the original job is no longer there? There are no comparable jobs (ones that pay similarly or have similar duties). In this situation, what is the employer required to do?
THE FIRST ANSWER
Lai-King Hum, founder and senior lawyer, Hum Law Firm, Toronto
The answer depends on the reason the job is no longer there. Job elimination cannot be related to the employee’s parental leave. Common mistakes related to parental leave include the employer finding either the replacement employee performs better so they are offered the job permanently or that the organization operates better without the employee during their absence, so the job is eliminated altogether. In both scenarios, had the employee not gone on leave, they would not have lost their job.
Employers are legally obligated to either make the original or a comparable position available to the employee when they return from parental leave or offer a non-comparable position that the employee is willing to accept. The employer may give the employee the option of accepting a generous termination package, but accepting this should always remain optional. Otherwise, terminating the employee without their consent may lead to disputes, potential human rights damages and eventual reinstatement.
Even if the original job was eliminated because of a legitimate downsizing (for example, the whole department has been eliminated), without the parental leave factoring in at all, there is still potential for disputes. The decision-making process for eliminating the position should be documented and the employer must ensure that being on parental leave did not factor at all into any of the decision.
This is not always a straightforward situation and both employers and employees involved might consider exercising prudence and consulting with a legal expert to ensure all obligations and rights are taken into consideration.
THE SECOND ANSWER
Sarah Coderre, partner, Bow River Law LLP, Calgary
If there are truly no comparable roles available, the employer would be required to terminate the employee’s employment on a without-cause basis. In order to end the employment in that case, the employer must pay the employee a severance package that is equal to the compensation they would have received during their reasonable notice period under the common law. Or, if the company has drafted a contract that clearly sets aside the employee’s entitlement to reasonable notice under the common law, the employer must pay the employee what they are entitled to receive as contractual termination pay. In either instance, the employer must also ensure that any statutory entitlements that the employee is required to receive under the relevant employment standards legislation are also provided to the employee.
However, even though the employer has legitimate business reasons for terminating this employee, the fact that the termination is occurring after the employee has returned from parental leave could create the perception that the employee was terminated because they had chosen to take parental leave from their role.
The employee may be motivated to bring a human rights complaint against the employer for discrimination. Rather than waiting to see if a complaint may come in the future and then having to spend significant time and legal fees defending the complaint, the employer may wish to pay the employee some additional severance pay in exchange for a release that specifically waives any potential human rights claim against the employer, among other things.
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