In a recent case, an employee’s claim was dismissed after she was unable to show that her employer had discriminated against her by failing to accommodate her childcare needs after her return from maternity leave.

What Happened?

The employee worked as a scheduler for the employer, a small company that made and installed granite counters,from May 2010 until December 13, 2013, when she took maternity leave prior to the birth of her third child.

The employee took a statutory maternity leave of one year and was supposed to return to work on December 15, 2014.

However, in a series of text messages in October 2014, it was agreed that she would not return to work until the new year, although no specific date was set.

On January 6, 2015, the employer’s co-owners met with the employee to discuss her return to work. At the meeting, they advised the employee that she would be required to be at work at 8:30 am every day due to changes in the workplace even though, in previous years, the employer had accommodated her child-related needs with regards to morning obligations and start times. The employee advised the employer that she would see what she could do to find before school daycare for her two older children.

Immediately following that meeting, the employer sent her a written offer of employment, which required her to begin her work day at 8:30 a.m.

However, the employee never returned to work. She claimed that she was unable to do so because she could not secure before-school daycare for her two older children and the employer would not accommodate her childcare needs.

The Employee’s Claims

The employee claimed that the employer had breached its obligation under the Employment Standards Act, 2000 (the “ESA”) to reinstate her to the position she held prior to maternity leave. She also claimed that the hours of employment offered upon her return were a unilateral change to a fundamental term of her employment and she was constructively dismissed. The employee claimed damages for wrongful dismissal equal to six months’ notice.

Finally, she claimed that when she told the employer that the hours proposed conflicted with her childcare arrangements and family obligations, the employer failed in its obligation to accommodate her as required by the Ontario Human Rights Code (the “HRC”).

The Decision

Regarding the first issue, the court found that the evidence did not show that the employer failed to reinstate her to the position she held prior to maternity leave.

Section 53(1) of the ESA provides:

Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.”

The court stated that this means that the employer is not obliged to reinstate an employee to the exact pre-maternity leave schedule when there has been a bona fide change during the leave. Even though there had been some accommodation to the morning schedule in the past, the court found that when the employer required the employee to be at work consistently by 8:30 a.m., it did not change her previous terms of employment, stating:

“[The employer]’s desire to have the Scheduler cover the early morning hours was bona fide and was not intended as a way to put roadblocks in the way of the [employee]’s return to work.”

The court therefore rejected the first claim.

For the same reasons, the court rejected the employee’s claims that she was constructively dismissed. To prove constructive dismissal, the claimant must establish that the employer had unilaterally changed the terms of the contract. Based on the evidence, the court did not find a unilateral change, stating:

“Despite that [the employer] had previously granted the [employee] latitude in the time at which she arrived for work prior to her maternity leave, the evidence leads me to conclude that it always remained a term of her employment that the [employee] be able to attend work close to 8:30 a.m.”

The court therefore rejected the second claim.

Finally, the court looked at the employee’s claim that the employer failed in its obligation to accommodate her as required by the HRC.

Section 5(1) of the HRC prohibits discrimination with respect to employment because of “family status”. The term “family status” includes substantial obligations owed by parents toward their children, which includes childcare obligations.

The employee claimed that the employer discriminated against her when it refused to accommodate her childcare needs and not allow her to begin her workday at 10:00 a.m.

However, the court found that the employee had not provided enough information to the employer regarding her childcare needs, nor was she truthful about them. As a result, the court concluded:

“By failing to disclose to [the employer] her true childcare needs, the [employee] thereby frustrated any efforts that might have been made by [the employer] to accommodate those needs.”

As a result, the court rejected the discrimination claim and therefore dismissed the case in its entirety.

For Help

The Kitchener-Waterloo employment lawyers at Petker Campbell Postnikoff have many years of experience advising non-unionized employees and employers on a variety of workplace issues, including sexual harassment and termination. Our team will walk you through the details of your dispute, advise you on your rights, responsibilities and obligations, and help you understand your options.  If your dispute cannot be settled through negotiation, we can represent you through mediation and the court process.

We represent clients throughout southern Ontario, including the communities of Cambridge, Guelph, Elmira, Brantford, Fergus, Elora and the surrounding area. Call 519-886-1204 or contact us online for a consultation.