Employers in Ontario and other Canadian jurisdictions recognize that they have to reinstate employees returning from maternity or parental leave. However, an Ontario Court has gone a step further and said that a refusal to reinstate can amount to a breach of “family status” protections of the Human Rights Code.
A recent decision in Ontario is a reminder to employers about their obligations to employees returning from maternity and parental leave under the Employment Standards Act (“ESA”), and the costs of reprisal against employees for exercising their rights. It is also an indication of how broadly courts are willing to use the ground of family status to punish employers — in this case, to the tune of $20,000.
In Partridge v. Botony Dental Corporation, the 39 year old plaintiff worked from 9-5 as an office manager. Shortly before returning from her leave, her employer informed her that her office manager position was no longer available, which was untrue, and she would work as a dental hygienist from 8-3. Her hours of work and hourly rate were reduced as a result. The employee testified, and the court accepted, that the employer had told her it did not want to pay her the higher rate associated with the office manager position.
The employee pointed out that she had the right under s. 53 of the ESA to be returned to her previous position, or if it was not available, a comparable position. She demanded to be given roughly the same number of hours of work and shift schedule as she had before.
The employer then changed her hours of work to 10-6 on 3 of her 4 days a week of work, which the employer knew would conflict with her childcare obligations. The employee was terminated shortly after returning to work.
The court found that the change in conditions, schedule, and the employer’s “progressively authoritative and restrictive responses” to the employee were a form of retaliation for asserting her rights under the ESA. Justice Healey found that the changes to Partridge’s terms and conditions of employment were a breach of s. 53 of the ESA, which required that the employee be returned to her office manager position after her leave. The Court found that the employer’s conduct was a reprisal under the ESA and that there was no cause for the employee’s termination and awarded almost a year’s salary for wrongful dismissal.
The decision makes perfect sense to that point. There is no question that an employer must reinstate an employee to the position they most recently held before their maternity or parental leave commenced, or if that position is no longer available, to a comparable position. And using shift changes, among other things, to punish an employee for exercising his or her rights under the ESA is a reprisal contrary to s. 74 of the ESA, which prohibits intimidating, dismissing or otherwise penalising an employee for asserting their rights under the Act. Reprisal can result in an order for compensation or reinstatement under s. 104 of the ESA.
Had it ended there, the ruling would simply have been a stern reminder to employers about their obligations to employees returning from leave. .
But instead, in a confusing turn, Justice Healey went on to find that the conduct discriminated based on family status under the Ontario Human Rights Code. Justice Healey considered the recent decision in Johnstone v. Canada (Border Services), and applied the four-part test set out in that case for when discrimination resulting from a workplace rule or policy that conflicts with childcare obligations. The Court found that the new work schedule was not a bona fide occupational requirement, and that there was no rational connection between the requirement and the job duties. This finding was hardly surprising because the schedule had been imposed as part of punishment for insisting on reinstatement to her previous terms and conditions of employment. It could hardly have been a bona fide job requirement.
The problem with the ruling is that the employer’s conduct and the case itself had nothing to do with family status. The breach of s. 53 of the ESA, and the acts of reprisal, would have been just as clear even if the altered shift had no impact on the plaintiff’s childcare obligations. For example, had the employer instead changed the employee’s shifts to something that was unpleasant to her for reasons other than her childcare obligations, the reprisal would still have been made out, and the employer’s nefarious purposes achieved. But it would not have raised the spectre of family status discrimination. The same could be said for any other negative change imposed to punish the employee, such as her demotion and cut in pay.
Instead, the mere fact that one of the forms of reprisal was to make her work day 1 hour longer three days a week, which made it difficult for her to arrange childcare. This the court amounted to a “family status” issue - a stretching of the Johnstone decision. The employee was not terminated because she could not meet the employer’s schedule due to her childcare obligations (as was the case in Johnstone). She was terminated as part of a reprisal, one of the elements of which happened to have an indirect impact on her childcare obligations for the short period of time she remained employed.
The Court also glossed over whether the employee had made reasonable efforts to meet the childcare obligation. In Johnstone the court made it clear that both parents must be unable to meet the childcare obligations before the employer is required to change its scheduling practices. In Partridge, the only analysis on this point is that having her self-employed husband pick up her children would require him to leave his business early, without any analysis of why this was an unreasonable solution. The period of time involved was also quite short to support the conclusion that the other arrangements put in place, including arranging extra care with family or neighbours, were unworkable.
The employee in Partridge faced the difficulty of having to arrange an extra hour of childcare for the few weeks she remained employed after her return from leave, for which Justice Healey awarded her $20,000 for injury to dignity and feelings. Justice Healey gave two reasons for this award. First, she found that the employee took pride in her job and was “emotionally affected” by her termination. However, the findings in the decision don’t appear to support the idea that she was upset by a breach of her family status rights. Rather, she was upset because she had been fired which, according to the decision, was done for reasons of reprisal, not for reasons of her childcare obligations.
Had the employee been fired because she couldn’t balance her childcare obligations and her work schedule, then the family status ruling might have made sense. But that clearly wasn’t the case in Partridge. Moreover, there was no suggestion that the employer’s policies or the workplace culture devalued employees with childcare obligations, let alone that this was the source of the employee’s emotional upset.
The second reason for the rich damage award was that the Court wanted to punish and deter “employers who are unwilling to accommodate childcare arrangements”. Yet this was an employer which had previously permitted her a flexible schedule during her 9-5 workday as office manager. It is clear on the facts that the employer’s actions were in retaliation for Ms. Partridge trying to enforce her employment standards rights, not for exercising her human rights. This aspect of the ruling is of great concern, because it does not seem reasonable for indirect human rights violations to be inferred from ESA breaches and then to give rise to damages of this scale.
This decision rightly calls out retaliatory employer behaviour contrary to the ESA and remedies it. Every employer should be mindful of their employees’ rights upon return from leave. However, by accepting the family status piece of the claim, the Court appears to be penalizing the employer for its perceived misconduct, rather than compensating a plaintiff for her loss.
Further, Partridge appears to lower the threshold for family status discrimination by a significant margin below the Johnstone decision. In our respectful view, the Johnstone decision remains the better and more reliable interpretation of family status.