Lawyer Erin Brandt (nee Kizell), Contributor. 
We’ve written before about the rights afforded to pregnant employees and new parents by both the British Columbia Employment Standards Act (the ESA) and Human Rights Code (the Code). At the risk of repeating ourselves, here’s a brief review of some of the legal protections available to BC employees when it comes to having children (for more details, see our earlier posts here and here):
- A pregnant employee is entitled a certain amount of unpaid maternity/parental leave from work under the ESA.
- An employer may not fire an employee or change a condition of their employment because they are pregnant, or for taking maternity/parental leave under the ESA.
- After your leave is over, your employer must return you to the same position you held before your leave, or one that is comparable, unless the employer’s operations have been suspended or discontinued.
- Under section 13 of the Code, an employer may not discriminate against you on the basis of “sex”, unless there is a bona fide occupational requirement which justifies the discrimination, or unless accommodating you would create undue hardship for the employer. Sex discrimination includes both discrimination on the basis of pregnancy, and failing to allow a woman to return to work at the conclusion of her maternity/parental leave.
To summarize, BC parents who take maternity and/or parental leave from work are entitled to job protection, within certain defined limits.
What happens if an employee’s position is eliminated during their leave as a result of a business restructuring? Is an employer excused from its legal obligations to return an employee to their previous position once their leave finishes in such situations?
According to a recent decision from the Ontario Labour Relations Board (the Board), if an employer uses the opportunity of an employee’s statutory leave to restructure, this may lead to sanctions under employment standards legislation.
Employment Standards: Lamoureux v. JYSK
In Melanie Lamoureux v. JYSK Linen N Furniture Inc., while Ms. Lamoureux was on pregnancy and parental leave from her job at JYSK’s office in Mississauga, her employer took the opportunity to relocate her position from Ontario to British Columbia, and to give the BC job to another employee. On the evidence before it, the Board concluded that the job was moved only because of Ms. Lamoureux’s leave and therefore that the employer violated Ontario employment standards legislation by transferring the position while she was on leave. Of interest, the Board stated that had there been a serious plan in place to move the position to BC before Ms. Lamoureux announced her pregnancy, the outcome may well have been different.
The question is, could this happen in BC?
Although we’re not aware of any BC employment standards decisions involving facts identical to those in Lamoureux, the 2003 Employment Standards Tribunal decision in Re Britco Structures Ltd. does caution employers against redistributing an employee’s job duties while she is on leave, and then using that redistribution to justify the employee’s dismissal.
In our view, the similarities between the relevant provisions of the Ontario Employment Standards Act and our own ESA suggest that a claim like Ms. Lamoureux’s could be made in British Columbia. While there are certain nuanced differences between them, both the Ontario and the BC legislation:
- Prohibit an employer from firing an employee because the employee took a pregnancy or parental leave.
- Require an employer to return an employee to his / her previous or a comparable position after the pregnancy / parental leave ends (with some limited exceptions).
(The relevant BC provisions are found in section 54 of the ESA.)
As the Board stated in Lamoureux, in both provinces, the purpose of the statutory leave provisions is to protect employees who decide to take leave.
Human Rights: Parry v. Vanwest
Interestingly, a similar case has been considered from a human rights perspective in BC.
In Parry v. Vanwest College, the BC Human Rights Tribunal considered an allegation that Vanwest discriminated against an employee on the basis of her sex when it terminated her employment at the conclusion of her maternity and parental leave. The employer’s explanation for the dismissal was that Ms. Parry’s previous position of Program Coordinator had been eliminated due to declining enrolment and the college’s resulting financial problems. The Tribunal ultimately concluded, however, that Vanwest used Ms. Parry’s leave as an opportunity to eliminate her job and terminate her employment, such that discrimination had occurred.
The Tribunal did acknowledge that a workplace is not “frozen” while an employee is away on maternity or parental leave, stating: (para. 67)
…the employer is entitled to make legitimate business-related decisions which may affect the configuration of the workplace to which the employee returns. In making those decisions, however, the employer must ensure that the employee on leave is not differentially affected by those decisions or left worse off than other employees who were not away on leave.
In the circumstances, however, the Tribunal found that there was no legitimate business reason for not offering Ms. Parry an instructor position, and that Vanwest had simply used her leave as a convenient excuse to fire her.
Notably, while employment standards legislation was not at issue in Parry, the Tribunal also took the opportunity to comment on Vanwest’s obligations under the ESA:
Vanwest appears to have taken its obligation under s. 52(3) of the Employment Standard Act to place a returning employee in her former position or a comparable one, and turned it on its head: because Ms. Parry’s position no longer existed, and there were no comparable ones, Vanwest had no further obligations to her. While the scope of the protection offered to women who take maternity and parental leave under the Act and the Code is not identical, this is the intention of neither the Employment Standards Act nor the Human Rights Code.
Implications for Employers
Taken together, Parry, Lamoureux, and Britco suggest that BC employers should exercise caution when considering a workplace restructuring while an affected employee is on pregnancy or parental leave. If an employee’s job is changed or eliminated while they are on leave, this opens an employer up to claims under both employment standards and human rights legislation, and the possibility of monetary sanctions.
Furthermore, failing to return an employee to the position they held prior to their leave is inconsistent with “sustainable employment” practices, which are characterized by fairness, respect and transparency, and which benefit both employers and employees. To learn more about Sustainable Employment, click here.
