Returning to Work after your Maternity Leave has ended
an article by Allan M. Kaufman, B.A., L.L.B., B.C.L. (Oxon)

This article will be of interest to women who have already taken maternity leave and are now coming back into the workforce, or who are contemplating having a child and taking time off work for maternity leave at some later date. This article is also applicable to any men who take paternity leave and then wish to come back to work at a later date.

I have seen a number of recent cases where a women who wants to return to her job after taking maternity leave, is informed by her employer that her job no longer exists, and that her employment must therefore be terminated. What many women (or men on paternity leave) do not seem to realize is that your employer does not have a choice about whether or not to take you back to work after maternity or paternity leave. You have a legal right to be reinstated back onto your job.

The provision in Ontario’s law is written in mandatory form. That means that your employer must take you back to work when your maternity leave ends. Furthermore, your employer must provide you with the very same job that you left behind when you went on maternity leave. Secondly, when you return to work your employer must start to pay you the greater of either: (a) the salary that you were earning when you first went on maternity leave; or (b) the salary that you would have been earning (at the date you return to work), if you had not taken maternity leave at all.

Some employers try to avoid this law because they prefer to keep on the payroll the person who replaced you while you were away on maternity leave. Even if your replacement has become a rising star in the company, the law still gives you absolute first priority to get your job back from him/her after maternity leave. In addition, according to the courts, the government also has an interest in ensuring that your right to return to work is respected, due to the overarching social purpose of facilitating child birth and child rearing in Canada.

What if your job does not exist when you return from maternity leave due to corporate “downsizing” or restructuring? First, you need to satisfy yourself that your job has actually disappeared, and that it is not a case of the employer using maternity leave as an excuse to get rid of employees (you) whom it does not like. Ask a trusted co-worker who is still on the job to check on what has happened to your job, and to let you know the details.

If you are satisfied that your job does not actually exist anymore, do not walk away. The employer still owes you a further legal obligation. The employer is then legally bound to provide you with a “comparable job” in the company. What constitutes a “comparable job” is a matter that you can negotiate with your employer.

An employer who implements a restructuring of its work force while you happen to be away on maternity leave, may inform you at the time of the restructuring that there will be “no job” for you when you plan to return later, and will offer you severance pay instead. Do not accept such a situation. Ask to be provided with a comparable job, as is

your legal right. Employers with a large workforce will have a difficult time asserting that they do not have any comparable job whatsoever for you. If the employer claims that no such comparable job exists now due to the restructuring, ask again when it is actually time for you to return from maternity leave. After all, how can the employer know for certain today that it will absolutely not have any comparable job for you when you return to work a few months later? What if the employer is faced with unexpected retirements or resignations by other employees in the interim?

In order for the employer to avoid reinstating you and to lawfully proceed to terminate your employment during or after maternity leave, it must demonstrate that the termination has absolutely nothing to do with your maternity leave. Do not be shy about asserting your legal rights in such a situation. After all, women have fought for many decades to obtain this legal protection.

Allan M. Kaufman, B.A., L.L.B., B.C.L. (Oxon) is an employment law lawyer in Toronto: a.kaufman@bellnet.ca (416) 364-1068

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