Reinstating employees after pregnancy leave

Provincial and territorial employment standards legislation across Canada is similar in this regard: once an employee has completed her leave of absence, the employer must reinstate her into the position she most recently held with the employer, if it still exists, or to a comparable position, if it does not exist. This includes paying the employee the same wage rate and benefits earned previously.

The legislation does address the possibility of a job ending solely for reasons unrelated to the leave of absence: in this case, the requirement to offer an employee returning form maternity leave her former job does not apply. However, the employer should be able to show that the reasons had nothing to do with the leave. Similarly, the legislation addresses the situation where the employer’s operations are suspended or discontinued at the time that the leave ends: the employer must comply with the above rule as soon as operations are resumed.

The big question is: what is a “comparable position”?

I recently reviewed a case out of Ontario dealing with an employee who was reinstated to a position after her leave of absence after pregnancy. The employee did not like the new position and wanted to return to her previous one. The main question was: “was the new position comparable to her previous position?”

The Ontario Labour Relations Board decided that the employee was indeed reinstated to a comparable position after returning from her pregnancy leave. Moreover, her previous position was no longer in existence. The board considered the following factors when deciding whether the position was a comparable position:

• Job location
• Hours of work
• Quality of the working environment
• Degree of responsibility
• Job security and possibility of advancement
• Prestige
• Perquisites

After examining these factors, the board held that the job was comparable. The employee’s pre-pregnancy job involved working in a call centre as an “inbound campaign worker”, receiving telephone calls from customers who required further assistance with products. Contrastingly, her post-pregnancy job involved working as an “outbound campaign worker”, calling people and selling products to new customers, or new products to existing customers.

When the employee returned to work, the inbound campaign she was working on had run its course, and future inbound campaigns had been outsourced to Pakistan. Only outbound campaigns were available for her. This work was comparable and the employer was permitted to provide her with the new job.

I’m wondering: has your company ever been in a position where it was not clear whether a new job was “comparable”? Have you ever had to reinstate a returning employee into a position she did not like?

View the case at:

http://www.iijcan.org/en/on/onlrb/doc/2010/2010canlii2627/2010canlii2627.pdf

Christina Catenacci
First Reference Human Resources and Compliance Assistant Editor

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Christina Catenacci, BA, LLB, LLM, Ph.D.

Christina Catenacci, BA, LLB, LLM, PhD, was called to the Ontario Bar in 2002 and has since been a member of the Law Society of Ontario. Christina worked as an editor with First Reference between 2005 and 2015 working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk, and First Reference Talks blog discussing topics in Canadian Labour and Employment Law. Christina obtained her Professional LLM Specializing in Labour Relations and Employment Law from Osgoode Hall Law School of York University in 2013, and recently earned her PhD in Law at the University of Western Ontario on October 23, 2020 in the area of privacy in the workplace.

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