A recent Ontario Superior Court decision[1] has resulted in the dismissal of the employee’s claims arising from an alleged breach of maternity leave and related common law and human rights claims.

The case is illustrative of the obligations of the employer upon the conclusion of the maternity leave period, the law on constructive dismissal and the need to accommodate child care issues.

The employer was successful in defending all allegations. The employee had refused to return to work in the context of alleged changed working conditions. She not only gave up her employment and lost the case, but also was ordered to pay the employer’s costs of $54,000.

The Facts

The employee was advised that a concrete expected starting time was set at 8:30 am for her position as scheduler upon her return from maternity leave. Prior to the leave, the employer had showed some flexibility to her actual starting time. The employee requested the same prior accommodation due to her need for child care considerations. Her mother had previously been available to assist but this was no longer so. She also explained that she had requested early morning child care but this would take some six months to achieve.

The dispute arose due to the employer’s insistence upon the fixed 830 am start time.  The plaintiff requested a 10 am start time due to child care issues. The employee refused to report to work and sued.

Issue 1

The first argument was that the Employment Standards Act was violated. This law requires that the employer reinstate to the prior position or one reasonably comparable. The court agreed that even had the employee not taken her maternity leave, the company would have requested the same change to a fixed time to start the work day at 8:30 am due to organizational changes. This claim failed.

Issue 2 Fundamental Change in Terms of Employment

The court disagreed with the assertion that there had been a constructive dismissal. The trial judge found that the hours of work were in the discretion of management and the request for an 8:30 start time was well within this degree of discretion.

Issue 3 Failure to Accommodate Family Status

This argument was based on a human rights plea that the employer must pay heed to the plaintiff’s particular child care needs. This argument failed as the court found that that employee had sufficient financial resources to allow her to afford child care expenses, that there were several child care options available to her in her immediate neighbourhood. The court also found that she was not truthful to her employer with respect to her child care options.

Employers Take Away

The employer in this instance acted fairly. The change in working conditions were modest and well within its apparent discretion. Had this not been so, its liability may well have been considerable. The Employment Standards complaint is a ticking clock as is the human rights case. Success in either instance could lead to a substantial lost income claim and reinstatement.

Lessons to Employees

This case was difficult. As a civil case was considered the means of the remedy, it exposed the plaintiff to the employer’s costs. Had the plaintiff made a human rights case only or a complaint under the Employment Standards Act, the same relief would have been available and not led to costs vulnerability.

Get Advice and Know Your Rights

Whether you be employer or employee, these issues can be complex and lead to expensive legal costs. It is important to know the law and your rights and remedies. For advice on this issue from either side, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.



[1] Peternel v Custom Granite