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Learning, Sharing, and Teaching => Ask a Mustachian => Topic started by: FI40 on December 03, 2015, 11:30:17 AM

Title: Employment after maternity leave in Ontario
Post by: FI40 on December 03, 2015, 11:30:17 AM
Hi all, I have an interesting dilemma that I was hoping some of you could weigh in on.

My wife is currently about halfway through her 1 year maternity leave. For the past year or so, her company has had a really tough time getting contracts. It is a feast or famine type of business so they have been laying off employees like crazy. Maybe 1/4 of the work force? It's a large engineering firm with several types of engineers (she's a civil engineer).

Having just heard about a very well-liked and productive higher-up at the firm that was recently laid off, she's starting to wonder if her job is secure. She was telling me initially that she heard it was guaranteed because they would never lay off the entire civil engineering department, so they can't just lay her off since she's a good employee (good performance reviews). But I'm not so sure - what I read is that all they need is a "legitimate business reason" to lay her off, which they definitely have - there aren't enough projects to keep everyone busy.

This is pretty relevant to us as we are planning to move very close to her work in a couple months, into a bit larger spot to accommodate our growing family. Since I would be commuting in that case, it makes a lot less sense for us to move there if they lay her off.

She doesn't really want to preemptively find another job because the company and her pay there is decent and they offer great maternity leave benefits, which we'll hopefully take advantage of again in a year or two.

Curious to see what others' thoughts are on this. Thanks in advance.
Title: Re: Employment after maternity leave in Ontario
Post by: okits on December 03, 2015, 06:36:51 PM
Yes, they can lay her off (even while she's on maternity leave, even if she has good performance reviews.)  Not enough business is a legal reason to lay off staff, and if they lay off a bunch of employees (not just the ones on mat leave) you won't have a very convincing argument for discrimination (unless there's other evidence), so her job isn't guaranteed just because she's on leave.

I'd advise her to keep in touch with the office and have conversations with her managers about the direction the company may be taking, foreseeing future layoffs, etc.  They may be forthcoming and disclose the volume of business and management's thinking about head count going forward.  They'll at least know she's interested in returning after mat leave and that the layoffs are on her radar.

I would not move until her job situation stabilizes, and just in case I would encourage her to see what other job opportunities are available to her.  If her company is a sinking ship it may be wise to jump early(ish) for something more stable.
Title: Re: Employment after maternity leave in Ontario
Post by: Cathy on December 03, 2015, 07:10:04 PM
I cannot and will not comment on the specific situation of the original poster ("OP"), but I will offer some general information on the topic of leaves in Ontario.

First of all, Canada is a nation of laws. Any discussion of this topic necessarily involves identifying, citing, and analysing those laws. See, e.g., Re Manitoba Language Rights, [1985] 1 SCR 721, 1985 CanLII 33 at ¶ 59; Roncarelli v. Duplessis, [1959] SCR 121, 142 (Rand and Judson, JJ, concurring); preamble to the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 ("Canada is founded upon principles that recognize ... the rule of law"); Bryan Camp, A Brief Analysis of Governor Palin's Tax Returns for 2006 and 2007, available on SSRN ( at *11 (October 5, 2008) ("So who died and made Mr. Olsen King? We are a nation of laws and you would think a [commentator] would analyze the actual law, kinda like I’ve done in this paper. It might be my analysis is wrong. But that is the point of making an analysis -- transparency.").

In Canada, employment law, including any legal right to leaves, is generally within the exclusive jurisdiction of the provincial legislatures as part of their plenary power over "Property and Civil Rights in the Province". Constitution Act, 1867, 30 & 31 Vict, c 3, § 92(13). That said, some workers are governed instead by federal law if they work in federally regulated industries or work for the federal government. The OP does not contain enough information to determine whether Ontario law or federal labour law would govern the OP's scenario. For the sake of discussion, I will consider only Ontario law.

Ontario law provides workers with two separate forms of leave related to childbirth under Part XIV of the Employment Standards Act, 2000, SO 2000, c 41 (the "SO" stands for "Statutes of Ontario"): "pregnancy leave" (up to 17 weeks unpaid, subject to conditions) and "parental leave" (up to 35 weeks unpaid, subject to conditions). Id, §§ 46-49. An employee needs to meet all of the technical requirements of these leaves before she is entitled to any rights flowing from them. I will not discuss those conditions in this post. Assuming an employee is validly on leave, Ontario law provides that "[u]pon the conclusion of an employee’s leave ... 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", but no such right applies "if the employment of the employee is ended solely for reasons unrelated to the leave". Id, § 53(1), (2). This statute provides the test governing this issue under Ontario law.

As mentioned, Ontario's labour laws do not apply to federally regulated jobs, which are governed by a wholly separate set of statutes (enacted by the Parliament of Canada, rather than the Legislature of Ontario).
Title: Re: Employment after maternity leave in Ontario
Post by: Prairie Stash on December 04, 2015, 10:05:05 AM
Most companies don't lay off people on maternity leave. Since EI pays 55% up to 49,500 of salary mat leave people are cheap on the payroll even if the company does top ups. Mat leave is a good way to ride out a short term famine, but eventually the situation will change.

Mat leave does not mean she won't get laid off 2 months after returning or 2 years later. The company owes her nothing and she owes them no loyalty either. If they can lay-off senior people without malice they'll lay her off if the business demands it.

I personally wish I had learned this lesson sooner. The right time to look for a new job is the day after you get a job. Always be on the lookout for better opportunities and your career will benefit. I bet her old well liked colleague wishes they had jumped ship before getting a lay off.
Title: Re: Employment after maternity leave in Ontario
Post by: FI40 on December 06, 2015, 01:26:35 PM
Thanks for all the replies. I will let her know and she'll be speaking with her manager soon, then we'll re-evaluate.

BTW, her old colleague actually found a job with less responsibility (what she wanted) but more money, so she's happy.