Can a female employee who is on maternity leave be dismissed? If so, what does the appropriate notice period start?
An employer can always dismiss its employee (male or female) so long as the employer:
- complies with the requirements of relevant statute, such as the Employment Standards Act (BC);
- dismisses the employee in a respectful way, that is in good faith;
- does not dismiss the employee on grounds, or in a manner, contravening human rights legislation, such as the Human Rights Code (BC);
- provides the employee with an appropriate length of notice, or pays the employee an amount equivalent to the compensation earned during the period of notice.
When an employer seeks to terminate a female employee while she is on maternity leave, there are some complications.
The Employment Standards Act requires an employer to observe certain duties when an employee goes on maternity leave. There is common law in British Columbia stating that the period during which an employee is entitled to notice of dismissal should not include the time during which that employee is in maternity leave.
So, under the following conditions:
- the employee has given notice of the employee's intention to take maternity leave under the Employment Standards Act;
- the employer has accepted that notice;
- the employee has started that maternity leave;
- the employer has terminated the employee's employment while the employee is on maternity leave;
- the employer elects not to have the employee who is maternity leave to return to employment after the leave finishes;
- the employer must not terminate the contract of employment until after the leave is over -- until that time, the employment relationship continues during the maternity leave period. To the extent that the employer and employee may have agreed to what benefits and obligations existing during the maternity leave, then those agreements remain in effect during the maternity leave and any payments, entitlements, and obligations that may arise after the employee returns remains in effect;
- the employer must continue all benefits that the employer is required to pay under the Employment Standards Act to the employee while the employee is on maternity leave;
- the employer must continue all benefits that the employer is required to provide under contracts of employment with the employee (such as maternity leave top-up);
- the employer's duty to notify the employee of the employment termination arises only after the maternity leave ends.
So, say an employee, if dismissed, would be entitled to 6 months of notice (for this part of the analysis, it does not matter why the employee has that entitlement), if an employee is on a six month maternity leave, and at the beginning of the leave, the employer decides to terminate the position, then the employer must honour the maternity leave, provide what benefits the employee is entitled to during the maternity leave and then provide an additional 6 months of notice after the leave ends.
Conversely though, an employee cannot use a maternity leave to extend what maternity benefits the employee may have had. So, in the above example, if an employee was not entitled to any compensation during the maternity leave (that is, she was only entitled to have her position protected for when she returned), then the employee could not claim that she was then entitled to compensation as if she was employed during the maternity leave just because the employer terminated the position during the leave. Rather, she would continue not to receive compensation during the leave, and then entitled to her severance entitlements on her return as if her position was protected (as the statute requires).
In practice, employers will likely pay the employee a severance package that corresponds to the seniority and benefits to which the employee would be entitled to after she returns from maternity leave.
Some factors that might affect the analysis:
- neither the employee nor the employer considered what would happen during the maternity period;
- the employer does not have a policy of doing anything other than protecting a position for a woman going on maternity leave;
- the position is eliminated, rather than the employee being terminated and replaced; or,
- the employee is terminated for cause.