April 29, 2016

Substantial Changes to Employment for Employee Returning from Maternity Leave = Significant Damage Award

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Dealing with employees who take maternity and/or paternity leave and then return to the workplace can be challenging for employers. However, the ability of parents to take maternity and/or paternity leave, and return to their employment, is a legislated right. Employers who do not permit employees to take maternity and/or paternity leave and return to their former position (or one substantially similar) do so at their peril as demonstrated in the decision of Partridge v. Botony Dental Corporation, 2015 ONCA 836. In that case, the employee was terminated from her employment after she objected to changes made to her position and working hours upon her return from maternity leave.




The employee had begun her employment with the employer in the position of dental hygienist. This position did not have guaranteed hours and her scheduled hours of work fluctuated greatly. She was later promoted to the position of office manager. This position came with an increased hourly wage and her work hours were fixed at 9:00am to 5:00pm Monday to Friday. The employee had taken a maternity leave in July of 2007 and returned to work in July of 2008 without issue.


In June of 2010, the employee commenced her second maternity leave. She was scheduled to return to work in July of 2011. Prior to her return to work, the employer advised the employee that she would be returning to the position of dental hygienist and that her hours of work would not be guaranteed and would fluctuate. The employee did not agree with these substantial and unilateral changes being imposed by the employer. When she refused to return under these conditions, her employment was terminated.


The employee brought an action alleging that the conduct of the employer:


  • Constituted wrongful dismissal;
  • Violated the Employment Standards Act; and
  • Violated the Human Rights Code.



The Court concluded that the employee was terminated without cause and was therefore entitled to reasonable notice, or pay in lieu thereof. The amount of reasonable notice was determined to be 12 months, despite the fact that the employee was in her late thirties and had only been employed for 7 years.


The Court further held that the employer had violated the Employment Standards Act. This legislation grants employees the statutory right to access unpaid maternity and paternity leaves and to be reinstated into their prior position, or a comparable position, when their leave comes to an end. The conduct of the employer was clearly a violation of the employee’s reinstatement rights after the end of her maternity leave.


With respect to the Human Rights Code, the Court concluded that the conduct of the employer constituted discrimination in employment on the basis of family status. She was awarded $20,000 in general damages for the violation of her human rights.


What This Means for Employers:


An employee has a statutory right to an unpaid maternity and/or paternity leave. Further, the Employment Standards Act provides that when that leave ends, an employer is to permit the employee to return to their position, or an equivalent position, with no decrease in pay and no loss in benefits. An employer who tries to impose unilateral changes to the employment relationship upon an employee’s return from maternity and/or paternity leave risks being found to have dismissed the employee (constructive or otherwise) and to have violated both the Employment Standards Act and the Human Rights Act. This, in turn, can result in significant damages being awarded in favour of the employee.


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Substantial Changes to Employment for Employee Returning from Maternity Leave = Significant Damage Award

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