Family status accommodation for childcare and reinstatement upon return from maternity leave have reasonable limits

Natasha, December 12, 2018

An Ontario court decision addresses family status and maternity leave issues under the Human Rights Code (the “Code”), the Employment Standards Act, 2000 (the “ESA”) and the common law.

Tina Peternel had worked for Custom Granite & Marble Ltd. as a scheduler for over two and half years when she took maternity leave after giving birth to her third child in December 2013. The position entailed some early morning responsibilities at times, which Peternel managed through a company-provided cell phone and assistance with childcare from her mother. On several occasions she arrived to work late for her 8:30 a.m. start time and although she was spoken to, she was never disciplined. When the employer offered her a position upon her return from leave that required she be at work every morning at 8:30 a.m., Peternel did not return to work and claimed that the employer failed to accommodate her family obligations and childcare responsibilities.

Peternel raised three claims alleging that the employer:

  1. breached the Employment Standards Act, 2000 (the “ESA”) by failing to reinstate her to her pre-maternity leave position;
  2. constructively dismissed her when it changed her hours of work thereby unilaterally changing a material term of the employment contract to her detriment; and
  3. breached the Human Rights Code (the “Code”) by failing to accommodate her family status obligations.

The court rejected all three claims.

The court held:

  1. there was no breach of the ESA because the employer had undergone changes to its business during Peternel’s maternity leave and the offered position was the remaining comparable position available. The changes and altered position would have occurred even if she had not gone on leave;
  2. it was not constructive dismissal as Peternel was always required to attend work early at the discretion of the employer, who now simply required that she attend daily at 8:30 a.m.. The reason she did not want to return to work was because she had lost the assistance of her mother with childcare;
  3. there was no breach of the Code. Peternel had the financial resources to afford appropriate childcare for each of her kids, she conceded that there were a number of pre-school childcare options available to her in her community, and the hours she was being asked to work were reasonable. Peternel failed in fulfilling her duty to cooperate in the accommodation process, both by not availing herself of available childcare, and by being untruthful with her employer in respect of her childcare options, frustrating the employer’s ability to be able to assess and offer reasonable accommodation.

The decision reinforces that an employer’s obligations regarding family status accommodation for childcare as well as obligations upon an employee’s return from maternity leave have reasonable limits. The takeaways:

  1. An employer has an obligation under the ESA to reinstate an employee returning from maternity leave to the same position, or a comparable position where the same position no longer exists. If the pre-leave position no longer exists, offer the position that the employee would have been offered had the employee never taken the leave.
  2. Constructive dismissal can occur when an employer unilaterally alters a fundamental term of the employment relationship to the detriment of the employee. Constructive dismissal does not occur where there are legitimate business reasons for the change or where an employer is simply enforcing a previously agreed upon term of the employment relationship.
  3. Family status accommodation for childcare is not required to accommodate an employee’s childcare preferences. Employees must cooperate in the accommodation process, including making an honest and diligent effort to exhaust all reasonable options for childcare and being truthful with the employer about the efforts made.

To read the decision, click here.

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