The recent decision of LaFleche v. NLFD Auto dba Prince George Ford (No. 2),  2022 BCHRT 88, highlights the careful approach that employers should take when employees are returning to work after a leave of absence.

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In this case, the BC Human Rights Tribunal found that Ford (the employer) removed Ms. LaFleche (the employee) from her marketing manager position and constructively dismissed her from her employment. In so doing, the Employer (Ford) discriminated against Ms. LaFleche based on sex and family status contrary to s. 13 of the Human Rights Code.

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As a result of the discrimination, the Tribunal awarded the employee $12,000 for injury to her dignity, feelings and self-respect as well as $66,625 for lost wages she would have received had she returned to work in July 2019 as planned, and for lost benefits.

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The first paragraph of the decision sets the tone for this case:

[1]               For over 30 years the law in Canada is clear: a pregnancy should not lead to work-related disadvantages: Brooks v. Canada Safeway Ltd., 1989 CanLII 96 (SCC), [1989] 1 SCR 1219. Discrimination based on pregnancy undermines substantive equality along gendered lines. In this case, Mellissa LaFleche suffered a work-related disadvantage because she was pregnant. (…)

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Facts

The employee began her employment with the respondent in 2015. She occupied the position of “marketing manager” by December 2016. In May 2018, she went on maternity leave. The respondent hired a replacement employee to cover for the complainant during her leave.

On February 8, 2019, the employee met with the respondent’s new general manager regarding her return to work following her maternity leave. During the meeting, the parties agreed that the employee would return to work on July 2, 2019.

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The general manager gave evidence that he understood the meeting would be a "meet and greet" with perhaps some initial discussion about the employee’s return to work. Accordingly, he did not prepare for the meeting or have a finalized plan for her return. During the meeting, the general manager advised that the employee’s replacement would take on at least some of the marketing manager duties after the positive changes to the employer's marketing strategy since the complainant went on leave. The employee’s role on her return to work was undefined.

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The general manager told the employee that they would get back to her by the end of the next month to discuss her return to work position and duties, but no one reached out to her. The employee also did not reach out to her employer – in fact, she filed a human rights complaint just a few days after the meeting, although the employer did not learn of this until some months later.

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The employee took the employer's lack of follow-up as confirmation that her employment was being terminated, and she did not return to work as scheduled. Approximately six weeks after her return-to-work date, the employer wrote to the employee advising that it considered her to have abandoned her employment.

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Decision and Analysis

The British Columbia Human Rights Tribunal found that the employer removed the employee from her marketing manager position at the February 8, 2019 meeting, when the employer told the her that it was happy with the replacement’s performance.

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The Tribunal noted the employer’s failure to communicate with the employee about the changes it was making and what would happen upon her return to the workplace.  It emphasized that while an employee is on leave, the employer is obliged to consult with the employee about significant changes that will be made to their position, as the employee would participate in such a discussion if they were not on leave.

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Did the employer’s conduct adversely affect the employee, including whether it constructively dismissed her?

The Tribunal found that the employer’s acts and omissions adversely affected the employee in her employment, and that the employer constructively dismissed her.

Adverse Impact

The Tribunal found the adverse impact was the employer’s removal of the complainant from her managerial position to an unknown position.  The Tribunal accepted that the employee felt humiliated; grieved the position’s loss; felt distressed and nervous about money; and lost sleep, her appetite, a sense of security, and the ability to enjoy her maternity leave.

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The Tribunal rejected the employer’s argument that the employee “abandoned” her job, noting that the employer said it would get back to the employee by the end of March with possible return to work “scenarios” but did not do so.

Constructive Dismissal

Noting that “a constructive dismissal occurs where an employer has not formally terminated an employee’s employment, but the employer’s conduct is treated as a dismissal or termination at law,” the Tribunal concluded that its findings that the employer unilaterally determined the employee would not return to her role as marketing manager, and that the employee reasonably understood the employer was significantly altering her job duties, amounted to a dismissal from employment.

Were the employee’s sex and/or family status factors in any adverse impact?

The Tribunal found that the employee’s maternity leave was a factor in her removal from her role and in the constructive dismissal; had she not taken it, she would have continued in her role as marketing manager.  The Tribunal concluded, therefore, that the employer discriminated against the employee on the basis of sex and family status.

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Award Against Employer

The Tribunal awarded the employee $12,000 for injury to dignity and $66,625 in lost wages and benefits, rejecting the employer's arguments that she only lost wages because she chose not to follow up regarding her return to work, did not return to work as scheduled after her maternity leave, and did not apply for many, or appropriate, jobs (mitigation).

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The Tribunal also awarded loss of EI benefits for the employee’s subsequent post-termination pregnancy, reasoning that, through the loss of her job, she did not attain the number of insurable hours that she needed to qualify for maternity and parental leave benefits for her second child.

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The Tribunal did not, however, award continuing wage loss for the period when the employee decided to change careers to become a doula, and returned to school. (The Tribunal found the decision to become a doula was a complete career change, the financial consequences of which should not be the responsibility of the employer.)

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Finally, the Tribunal ordered the employer to pay a tax gross up for the increased tax liability Ms. LaFleche was expected to experience from the additional income she would have to report for the 2022 tax year due to the lost wages she was awarded.

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Takeaways

• Employers should carefully navigate discussions with employees who are on leave. Managers/HR professionals should prepare for these meetings and ensure they have notes and a record of the meetings and discussion. In this case, a meeting which the manager had understood as a "meet and greet", and which he did not prepare for, nonetheless included a discussion of the employee's role upon her return to work which left her with the impression that she would not be returning her to her previous position.

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• In general, absent bona fide business reasons that are completely unrelated to the employee going on leave, employers must return the employee to the same position they held before going on leave, or the employer must reach agreement with the employee regarding any material changes to their job or their compensation.

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• Employers should communicate clearly and consistently with employees, and to prepare for questions that may arise in the return to work context. We recommend these discussions happen before the end of a leave.

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• The mere fact a replacement employee is preferred does not override the absentee employee’s human rights.

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• If an employer is considering making any change to the role or employment terms of an employee who is on leave, we encourage them to seek the advice of experienced employment lawyers.

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• Employers should consider their current policies and ensure they have maternity (and other leaves) policies in place with appropriate management training.

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