By Allan M. Kaufman
Most employers are aware that the right of a woman employee to return to her job at the end of her maternity leave is protected by law. The government has strong societal reasons for wanting to ensure that working women are encouraged to have children, without fear of losing their jobs.
I have encountered many situations in which the employer advises the woman – just prior to her anticipated return from maternity leave – that she will not have a job to return to. I have also encountered situations in which the same employer, under pressure from the woman’s lawyer, has reconsidered its decision and reluctantly agreed to return the woman to her previous job or to a comparable job. However, I have recently encountered a situation in Ontario in which the employer who has taken the woman back to her job under legal pressure from her lawyer has plotted to “get even”.
In other words, the employer calculated that it might lose the legal fight that would ensue if it carried through with its announcement to dismiss the woman from her job at the conclusion of her maternity leave. While it appeared on the surface that the employer had backed down by allowing the woman to return to work, the employer had done so with the calculated but concealed intent to terminate her employment only a few weeks after her return.
What advantage would the employer gain from such a course of conduct? The employer would be able to assert that it had complied with its legal obligation to reinstate the woman after maternity leave. Therefore, the employer would assert that it would only be liable for one thing when it dismissed her a few weeks later, namely to pay her severance pay for terminating her employment. Had the employer carried out its first intention to dismiss her at the end of her maternity leave, thereby denying her the right to return to work at all, the employer might be legal liable for two things: (1) monetary damages for violating the woman’s legal right to return to work following maternity leave; plus (2) severance pay for terminating her employment.
If your employer dismisses you only a few weeks after your return from maternity leave, first ascertain whether the employer had valid reasons to justify the dismissal. If the reason offered is that the employer “no longer has sufficient work” for you to perform, check whether the lack of work actually occurred from the date you were re-hired after your maternity leave to the date of your dismissal. If the reason for the dismissal is that you “failed to meet performance targets,” consider whether you were given sufficient time after your return to work to comply with those targets, or whether the targets were set so high upon your return that you were bound to fail.
There will not usually be direct proof that the employer plannedto dismiss the woman from the first day that it reinstated her after maternity leave. You will not usually uncover an e-mail from the employer to another senior person that set out the plot. Rather, inferences will have to be drawn from the fact that the employer was initially very reluctant to bring the employee back after maternity leave, and from the lack of valid reasons given by the employer when it ultimately dismissed her a few weeks following her return to work. If those inferences are strong enough to suggest that the woman’s dismissal may have been pre-planned, the law in most Canadian provinces would still allow that woman to file a legal claim against her employer alleging:
(a) failure to properly reinstate her after her maternity leave; and (b) retaliation against her for having brought legal pressure upon the employer to take her back to work after maternity leave.
While I do not pretend that this will be an easy case for a woman to win, she does in fact have a legal remedy.
Do not be reluctant about asserting your legal rights in such a situation. Women have fought for many decades to obtain the legal right to return to their jobs at the end of maternity leave. You should not allow your employer to deprive you of that right.