Law Times

Page 10 November 10, 2014 • Law Times www.lawtimesnews.com FOCUS Dismissing staff on parental leave 'quite common' BY MIcHAEl McKIERNAN For Law Times n increasing number of employers are defy- ing the conventional wisdom that they can't fire an expectant or new parent on maternity or parental leave, say employment lawyers dealing with the fallout from such cases. "People tend to think there's no right to let them go, but it is in fact quite common," says Sean Bawden, an Ottawa-based employment lawyer. A recent study commis- sioned by a British law firm found one in every seven wom- en surveyed in that country lost their job while on maternity leave, with around 40 per cent returning to find their jobs had changed in some way. While there are no similar studies on Canadian women, Bawden says there's no reason to expect the situation is much better here. "I'm not saying it's right, but it happens far more than most people would assume," Bawden adds. Reshma Kishnani, who prac- tises at Basman Smith LLP in Toronto, says the popular view about the implausibility of ter- mination while on maternity leave is simply wrong. "Legally, you are able to ter- minate an employee who is on leave, provided the reasons for termination are wholly unre- lated to the leave, such as down- sizing or restructuring," she says. "At our firm, we have seen an increasing number of cases where an employer terminates an employee while on maternity leave with the termination be- ing effective when they return. It's viewed by the partners as a growing phenomenon in the employment industry." However, Allison Greene, a lawyer at employment law bou- tique Karimjee Greene LLP, says that in practice, employers are still taking a significant risk when terminating an employee on some form of parental leave. "The problem, of course, is that the onus is on the employer to prove that the decision to ter- minate was based solely on rea- sons unrelated to the leave," she says. "Under Ontario's Human Rights Code, it doesn't matter how many other factors there are in the termination. If the pregnancy is one of them, then the decision is tainted by discrimination." Aside from the clear cases where an employer terminates pregnant employees along with the entire workforce in cata- strophic business failures, ter- mination of those on parental leave will always attract "addi- tional scrutiny" because the "op- tics" are often poor, according to Kishnani. "Having the additional stress of worrying about the security of their job should not be neces- sary because those who are on parental leave have the right to be reinstated to their position or to a comparable position when their leave is over. It is important to treat them fairly." For those employers with genuinely non-discriminatory reasons for terminating em- ployees on leave that are willing to battle through the inevitable bad optics, Greene says docu- mentation is critical at every stage of the process. "Sometimes, employers will want to terminate for perfor- mance reasons. If discipline only starts after the employer found out about the pregnancy without sufficiently document- ed decision-making before then, that's going to be an issue. If the termination is as a result of re- structuring, tribunals will be looking for documentation to show that it was considered or in motion before the news about the pregnancy." Once they've made the deci- sion to terminate, Greene says many employers struggle with the best time to let the employee know. Some seek to hold off for as long as possible for fear of det- rimentally affecting the health of the employee at a sensitive time. But early notice means employees will have more time to secure alternate employment and it's less likely they'll have gone through the challenging task of securing childcare for their anticipated return to work. Greene says many of her clients are victims of the anti- stacking provisions of the Em- ployment Insurance Act. The effective date of termination for many employees falls on the day they were due to return from a leave so they can continue to collect employment insurance benefits right up until the end. However, they can't go on to col- lect regular benefits after that date because they'll have hit their cap and won't have worked enough insurable hours to qual- ify for more. "That is an issue that comes up quite frequently," says Greene. "I think for the employ- er and the employee, it's better if it's possible to terminate after the employee has returned and accrued enough hours to avail themselves of regular employ- ment insurance benefits. 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