Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends travelled a lot based there. She worked long hours and expressed concern about being there alone after hours, so she started work- ing from home in early 2012. In the fall of 2012, Lamoureux advised her manager that she was pregnant and her due date would be in the spring of 2013. She in- dicated her intention to take maternity and parental leave available and return to work at the end of it. e manager agreed, as Lamou- reux was considered a valuable and hard- working employee. Shortly before Lamoureux went on leave, JYSK decided to permanently fill her posi- tion with an employee based in B.C. e manager had wanted to have the translator located at her Vancouver office, since about 70 per cent of the translator's work was for advertising department material and the department was in Vancouver. e manager felt this would make things more efficient and allow her to monitor the position more directly. ere had been no serious discus- sion to move the position until Lamoureux announced her upcoming maternity leave, at which point the company felt it made sense to make the move with the new hire. On Jan. 26, 2013, JYSK advertised for a translator position in the Vancouver office. e position would replace the advertising aspects of Lamoureux's job, and the quali- fications on the job posting included desk- top publishing skills that Lamoureux didn't have. Lamoureux — who had not yet gone on leave — was aware of the new position but believed the new hire was meant to re- place her just for the duration of her leave. JYSK intended to find another position in Mississauga for Lamoureux, so it didn't ad- vise her of the decision to move her position, nor did it consider offering her the position in B.C. On Feb. 6, 2013, an HR employee emailed Lamoureux's manager to confirm Lamou- reux's return-to-work date. e manager forwarded the email to Lamoureux without mentioning anything about her position in Ontario having been eliminated. Position was eliminated shortly before pregnancy leave started e manager set up a meeting with Lamou- reux and an HR representative on March 1, where she told Lamoureux that her position no longer existed in Ontario and JYSK would try to find another one for her. Lamoureux was initially excited about the opportunity for a change and in additional exchanges over the next little while, she indicated she would like to work from 7:30 a.m. to 4 p.m. — the same hours as before her leave — with the same pay. However, JYSK only had part- time retail store positions at a lower salary available in Ontario. Lamoureux said these positions were unacceptable and, though JYSK acknowledged the avail- able jobs were not comparable to her job before her leave, it terminated her employment effective March 11. Lamoureux filed a complaint, ac- cusing JYSK of violating the Ontario Employment Standards Act by failing to reinstate her to her employment fol- lowing a protected leave. JYSK argued the move of Lamoureux's position was a legitimate change in its business op- eration that it needed to do and it tried to find other work for her, but there was nothing comparable and the Mississauga of- fice was closing. It aruged the Employment Standards Act, 2000, stated a returning em- ployee could not demand a former position that was affected by business changes that are required solely by the requirements of the business. e board found that the crux of JYSK's argument was that an employee who takes pregnancy leave is to be treated the same way as if she had not taken a leave, and going on leave shouldn't shield an employee from the consequences of legitimate restructuring of the business. However, the board found this wasn't the circumstances here: ough the manager desired to have the translation work done in the Vancouver office, it hadn't been seriously discussed. Had there been a "serious plan" in place to implement the move of Lamoureux's position, things might have been different. But the decision to make the move was brought about by Lamoureux taking pregnancy leave; had she not got- ten pregnant, the move wouldn't have been made when it was, said the board. "e purpose of the leave provisions of the act is to protect employees who decide to take leaves," said the board. "In my view, they ought not to be interpreted to allow em- ployers to use the leave as an opportunity to eliminate the position of the person on the leave in circumstances like those before me." e board found JYSK violated the act when it transferred Lamoureux's position when she was on leave and also when it failed to offer the moved position to her. Even if the company didn't believe Lamoureux would accept the position in B.C., it had no basis for coming to that conclusion without asking her; nor was there any indication it even con- sidered offering her the job, said the board. e board felt reinstatement would be an appropriate remedy as the employment rela- tionship could probably be saved — Lamou- reux worked from home with limited contact with her manager and was considered a good worker — but Lamoureux didn't make a claim for reinstatement nor did JYSK make an offer of reinstatement at any time. As a result, JYSK was ordered to pay Lamoureux compensa- tion for lost wages and benefits from her date of termination, as well as lost employment insurance benefits Lamoureux would have received during a second pregnancy had she not been terminated by JYSK. In addition, the board added $5,000 as compensation for emotional distress caused by the company's attempt to give her the "run around" that ex- acerbated the harm to Lamoureux. For more information see: • Lamoureux v. JYSK Linen N Furniture Inc., 2015 CarswellOnt 18083 (Ont. Lab. Rel. Bd.). Employer had only part-time positions left in Ontario « from ILL-CONCEIVED on page 1 The decision to move the position was brought about by the pregnancy leave. There was no serious plan in place before then. WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as employee off-duty conduct, preventing workplace bullying and violence, social media in the workplace, and biometrics. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. CREDIT: PUSHISH IMAGES/SHUTTERSTOCK

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