Dont Pick on the New Mom

The Ontario Employment Standards Act has provisions regarding pregnancy leave.  Often referred to as maternity or mat leave, a new mother is entitled to take some unpaid time off work to care for the infant.  The mother also has a right to return to her job when the mat leave is over.  The employer has to maintain benefits and the employee retains seniority during the leave.

I am amazed at the number of employers that do not comply with the mat leave provisions.  Some employers refuse to give the employee their job back.  Some cut back on benefits.  Some pay a smaller bonus or do not give an annual raise to employees that have been on mat leave.  (You were only here 6 months last year so you are getting half the bonus of everyone else.)

There is no dumber thing to do than breaking the mat leave provisions of the Act. 

First, some of the most severe penalties in the Act are reserved for breaches of the mat leave provisions.

Second, the Ministry does not look favourably on employers that breach this part.  The onus will be on you to prove that you have done things properly, not the Ministry to prove you breached the Act.

Third, you are dealing with an employee who has gone through a few months of reduced income and the trials of being a new parent.  It is not a good idea to anger that person.  You will get a reaction.

I recently spoke with a woman who had taken a mat leave and the employer refused to allow her to return.  The employer wrote a letter that said bluntly that the employees job was no longer available to her and that someone else had it.  The employer stated that he was under the assumption that the employee was not going to return.  He relied on the Record of Employment, which had been marked Not Returning.  Of course, it is the employer that fills out the ROE.  How wonderfully self-serving...  He will pay.

What if you need to terminate an employee, but they are on mat leave?  This is onew of the hardest situations for lawyers to give reliable advice.  You can, in rare circumstances, justifiably terminate an employee on maternity leave.  But (and this is a BIG but), you are immediately risking a complaint.  You will have to prove that the termination is for good business reasons.  I dont really like her wont cut it.   We have closed down the operation has a better chance.

Whatever you do, this is one area where you should get professional advice before acting.  You may avoid a long and costly Employment Standards proceeding.