In this Insights article, we review the decision LaFleche v. NLFD Auto, 2022 BCHRT 88 from the British Columbia Human Rights Tribunal. In LaFleche, the Tribunal found that the employer discriminated against an employee who was on maternity leave on the basis of sex and family status, contrary to section 13 of the British Columbia Human Rights Code, and that it also constructively dismissed her.
Ms. LaFleche joined NFLD as a social media manager in 2015. In April 2017, the general manager promoted Ms. LaFleche to a new full-time position as the marketing manager.
When she began a pregnancy leave in May 2018, a replacement was hired to replace her temporarily. However, in February 2019 when LaFleche met with the employer to discuss her return to work scheduled for July 2, 2019, the employer indicated they wanted her temporary replacement to stay on in her role. The employer indicated they would get back to her at the end of March to discuss her position and duties. Following this meeting, the employee felt she was being demoted. She filed a human rights complaint.
The employer did not contact the employee by the end of March 2019, as planned, with more information about her return-to-work plan. The employee viewed this lack of follow‐up as confirmation that the employer was terminating her employment. The employee did not return to work on July 2, 2019.
On July 4, 2019, the employee called the employer, who stated the employee had not been fired and that the employer had responded to her human rights complaint. When the employee asked when she would receive her Record of Employment, the employer stated she would receive it once the human rights complaint was finalized.
On July 4, 2019, the employee filed a complaint against the employer with the Employment Standards Branch, which led to the employer paying the employee a settlement amount of $3,750 for wages.
By letter to the employee dated August 20, 2019, the employer took the position that the employee had abandoned her employment when she did not return to work on July 2 as scheduled. This letter advised the employee that the employer would be discontinuing her benefits coverage, effective September 16, 2019, and stated that it deemed that it no longer employed the employee. The employee never responded to the letter, and never returned to work.
The Tribunal found that the employee’s maternity leave was a factor in her removal from her role and this removal and subsequent failure to communicate about her return to work constituted constructive dismissal. In short, had she not taken maternity leave, 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. The Tribunal awarded the employee $12,000 in compensation for injury to her dignity; and $66,625 in lost wages and benefits.
Takeaways for the Employer
Managing pregnancy and parental leaves can be challenging for employers, particularly now that these leaves can be extended for 18 months or longer when combined with other forms of leave. Frequently changes will arise in the workplace during the leave that may result in the absent employees position being modified, or eliminated, and where the reasons for these changes are wholly unrelated to the employee’s leave then an employer may make changes without having violated the employee’s human rights. However, where the changes are motivated in whole or in part by the leave of absence (for instance, a preference for the work or performance of the employee temporary backfilling for the employee on leave) then human rights concerns may come into play.
LaFleche puts employers on notice that if, while an employee is on leave, they unilaterally remove the employee from their position and give the role to another employee, such an act may amount to a constructive dismissal of the employee. If the leave is a maternity leave, such act may also be considered discrimination on the basis of sex and family status, contrary to applicable human rights legislation. Employers may be excused, however, from making such changes if the reason is unrelated to the employee’s leave and made for a bona fide business purpose.
LaFleche also puts employers on notice that when engaging in discussions with employees while they are on leave, they should prepare in advance and make every effort to avoid leaving the employee unclear or worried about the role to which they will be returning. Employers should also give employees the opportunity to participate in discussions about significant changes that will be made to their position while they are on leave, since the employee would ordinarily participate in such a discussion if they were not on leave. If during such a discussion, the employer promises to follow up to review details, it should be sure to do so.
PooranLaw will continue to monitor the ongoing legal developments related to cases like these. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.