Canadian Employment Law Today

December 15, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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ANSWER: Generally speaking, an employee cannot be terminated while on maternity leave except in very limited circumstances. It is im- portant in such circumstances to first seek legal advice from counsel in the employer's jurisdic- tion before proceeding. An employer may terminate the employ- ment of an employee on maternity leave pro- vided that the reasons are wholly unrelated to the leave itself. For example, if the work of an entire department is contracted out and one employee in that department happens to be on maternity leave at the time, it may be possible to terminate their employment. However, the legality of such action will depend on the circumstances as well as the applicable legislation in the particular juris - diction. For example, in some provinces em- ployers must offer the employee comparable employment. Employers should carefully consider their reasons for seeking to terminate an employee who is on maternity leave. If one of the rea - sons, however small, is related to the employ- ee's maternity leave or parental status, the em- ployer will be at risk of facing a human rights complaint for discrimination on the basis of sex or parental status. If a human rights complaint is filed, the human rights commission or tribunal of the jurisdiction will investigate the reasons for the termination. An investigation may involve in - terviewing employees at the workplace. If the investigation results in a finding that the em- ployer discriminated against the employee on the basis of a protected ground, the employee will be entitled to recover under human rights legislation. Such a finding may result in an or- der to reinstate the employee, pay back wages, and pay any other damages the employee may have incurred. Finally, in the event that an employer de- cides to proceed with the termination of an employee on maternity leave, it is also impor- tant to consult with local legal counsel with respect to any statutory or common law notice entitlements of the employee and whether there are obligations to first offer comparable employment to the employee. ANSWER: In calling on employees to return to working from the office on short notice, the likelihood of liability will depend on the cir - cumstances and the particulars of the remote working arrangement. If a remote working policy or agreement has been signed, the employer will be required to bring employees back to the office in accor - dance with the terms of the policy or agree- ment. For example, an employer may have a termination provision in the agreement or policy which allows the employer to require an employee to return to the office upon giv- ing seven days' notice to the employee. In the event that the employer did not comply with this provision and only gave a few days' notice, the employee can likely reasonably refuse to return to work on short notice pursuant to the terms of the policy or agreement. Providing short notice, such as a few days, for a return to work when such notice was not agreed to in advance could raise potential con - structive dismissal claims. Constructive dis- missal may arise where an employer unilater- ally makes changes to the fundamental terms and conditions of an employee's employment. An employee who does not agree to the chang- es and leaves their job may take the position that they have been constructively dismissed. Where established, the employee is entitled to compensation in lieu of notice and, where ap - propriate, damages. Changing the location of work may be con- sidered a fundamental term and condition of employment. If the employee does not agree to the change, they might be able to treat the employment relationship as having been repu- diated. If that is the case, the employee will be entitled to pay in lieu of notice as if terminated without cause. To avoid these issues, it is recommended that employers develop remote working agree - ments or policies which expressly permit them to terminate the remote working relationship and to require the employees to return to the office on short notice. Amy Gibson is an associate with MLT Aikins in Saskatoon, practising general labour and em- ployment law. She can be reached at (306) 956- 6994 or agibson@mltaikins.com. Canadian HR Reporter, 2021 2 | | December 15, 2021 December 15, 2021 COMPANY'S on page 7 ยป Requiring remote employees to return to the workplace QUESTION: Is there any employer liability for requiring remote employees to return to the office on short notice (such as a few days)? Ask an Expert Have a question for our experts? Email jeffrey.smith@keymedia.com with Amy Gibson Elimination of employee on maternity leave's position QUESTION: If the job of an employee on maternity leave is eliminated for unavailable business reasons, can the employee be terminated while still on leave? AMY GIBSON, MLT AIKINS, SASKATOON CREDIT:SHUTTER_M iSTOCK

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