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Can an Employee replace a mat. leave employee?

QUESTION: I have an employee returning from a maternity leave next month. Even before she became pregnant there were problems with her performance and attitude but we are a small business and I didn’t give her any warning letters. I foolishly kept hoping that things would improve. Then, when she got pregnant, I didn’t want to stress her out. I know I have to return her to the position she held before she started her leave but how long do I have to wait before I move her to another job or terminate her?
ANSWER: There is no answer to that question. Theoretically, if you fire her or change her job, even two years after her return, and she files a complaint with the Ministry of Labour, it’s all going to be about smell. An Employment Standards Act officer is going to look at the entire context and decide, on a balance of probabilities, whether this job change or termination was in any way related to the  maternity leave. For you, a good start would be documenting the job deficiency issues. You should start doing regular written performance reviews and, if appropriate, coaching sessions. You should establish a paper trail for a number of months showing that there were real deficiencies, real warnings and that you tried to work through them. If it is just a collection of picky little performance issues, it will smell fishy to the Employment Standards officer.
If they conclude there is some connection to the maternity leave, they can order the employee reinstated with back pay.
Despite all of the documentation you might do, if the first thing you do when you transfer or terminate the employee is move the employee you hired to cover the maternity leave back into her job, that smell is going to increase.
It often happens that the employer prefers the maternity leave replacement to the full time employee and realize they didn’t know how bad things were until the new employee stepped in.  That is exactly the kind of situation the Employment Standards Act is meant to address and remedy.
If you think you’ve come up with a clever trick to get around the reinstatement provisions of the Employment Standards Act, think again. Chances are the Employment Standards Act officer that will be arriving at your doorstep has seen through that trick many times before.
As published in The Hamilton Spectator, November 14, 2011
Ed Canning
Ed Canning
P: 905.572.5809