If you are on parental leave you may think you can’t be fired, but an arbitrator has ruled that employees on maternity or parental leave can be dismissed.
This means that if your company eliminates your position in a general downsizing after your baby is born, there is no obligation to rehire you at the end of your leave.
Margaret Moday worked for Bell Mobility in Toronto as a performance management coordinator for 11 years. In August 2011, she began a maternity leave, expecting to return to work a year later.
Three months later, Moday was notified her position was being eliminated. She was offered a severance package which she could take immediately or on her scheduled return to work date. She didn’t make a decision and Bell treated her parental leave as continuing until August 2012.
The company emailed her about 700 job postings during her leave. She applied for two of them, but was not offered a new position.
In January 2012, she filed a claim for wrongful dismissal under the Canada Labour Code, alleging that regardless of the reasons given by Bell Mobility, she was fired as a result of her parental leave.
In a hearing under the Canada Labour Code, Bell Mobility argued that Moday was fired because her job disappeared due to a significant corporate restructuring. The company also claimed that she was offered a 5½ month severance package which exceeded the legislative requirements.
In a February 2013 decision, the adjudicator Randi H. Abramsky dismissed Moday’s wrongful dismissal claim. Abramsky ruled that the right to reinstatement after maternity and parental leave does not take complete precedence over an employer’s right to reorganize the workforce.
She said that young men or women on parental leave should not be in a vastly superior position to any other downsized employee, including very senior workers or employees on sick or disability leave.
Matthew Fisher, with Toronto’s Lecker & Associates, who represented Moday was surprised by the decision.
“There is no reason why Bell couldn’t have found her a position,” he says. “ Her job was not unique. Yet the company made her apply for positions as if she came off the street asking for a job.”
Fisher says that after the hearing, Bell and Moday settled for more than the original severance package offered.