Your Rights
Reinstatement after maternity, parental leaveMaternity, paternity leave: know your rightsCongratulations, you've had a baby. You've completed your maternity or parental leave and are about to return to work. It's a stressful time but you're happy to return to your job. ALAN SHANOFF - Special to Sun Media |
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But, wait a minute, your boss has bad news for you. Your old job isn't available. Sorry, but enjoy your new life as a parent. It's a nightmare many have faced. So what are your rights?
In Ontario, the Employment Standards Act provides for a right of reinstatement: "upon the conclusion of an employee's leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not."
This doesn't necessarily mean that you have a right to the exact or identical job you held prior to the leave. The key is that you are entitled to be reinstated to your most recently held position, if it exists. For example, a teacher returning from her leave has the right to return to a teaching job but not necessarily the right to teach the same subject. A salesperson is entitled to return to her job as a salesperson, but not necessarily with the identical clients or territory, although the client base and territory should be comparable.
If the position does not exist, then you are entitled to a comparable position. For example, if the accounting department has been closed down and contracted out you cannot return to a position in the accounting department but you are entitled to a comparable position in another department.
If your employer has closed the office or plant where you worked you are entitled to a comparable position in another location.
However, if your employer has simply gone out of business or if there are no comparable jobs, then there is no right to reinstatement. In those circumstances you still have a right to a proper termination package, although it may be difficult to collect if your employer has gone out of business.
Things can get complicated if your employer has reorganized. It may be difficult to determine if your position exists or even if a comparable position exists.
Determining whether the position you have been offered is comparable can be tricky. You have to examine a number of factors relating to the new position: the duties and responsibilities, working conditions, salary, benefits, prestige and status.
If you have any questions and your HR or Payroll Department (or union if you are a union member) can't resolve your questions satisfactorily then a call to your local Employment Standards Office or a lawyer should be made. In Ontario the number is 1-800-531-5551.
The rules can vary slightly in each province so check with your provincial Employment Standards Office or Ministry of Labour.
Also, employees in federally regulated industries (such as bank, broadcasting, cable provider, telephone company or federal insurance company) have slightly enhanced rights under the Canada Labour Code and you should contact the federal Ministry of Labour.
When you return to work you should receive full credit for the time you were on leave for purposes of seniority and length of service. If the salary for the position increased while you were on the leave you are entitled to the increase upon your return.
Some employers try to circumvent these rules by giving the returning employee her job back only for a short period of time. The rules are loose but the employment must continue for at least a reasonable period of time. That doesn't mean that you are protected indefinitely, likely only for about six months.
Also, your employer always has the right to terminate for legitimate reasons (such as just cause) totally unrelated to the pregnancy or parental leave. Again, this can lead to tricky situations and you may need help.
Violation of reinstatement rights can lead to a human rights complaint based on discrimination due to sex, a wrongful dismissal lawsuit or an Employment Standards or Labour Code complaint. Union members may also file a grievance.
Employers, treat your returning mothers the way you'd like your wife or daughters to be treated. It's the right thing to do, and you'll save a lot of legal fees and aggravation.
Which job-searching mistake have you made?