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Continuity of employment can make wrongful dismissal complicated

When we talk about seniority in wrongful dismissal cases most people think about the last continuous period of employment. People are entitled to reasonable notice based on, in part, how many years they work for the company. Things get a little complicated, however, when employees work for an employer, quit for a while, then go back.
 
If they are eventually terminated, should the court consider just the last period of employment or all of it put together?
 
If you are hoping for a simple answer, forget it.
 
A woman we will call Ruth first started working for a car dealership in Niagara Falls in 1978. She was hired as a clerk and she quit on December 15, 1982 and had her first child a week later. She never went to work anywhere else and within ten months, in August of 1983, she returned to work in the same position. When she had left to have the baby, they told her that they wanted her back as soon as possible.
 
Remember that back in 1982, people didn’t get twelve months for maternity leave.
 
By 1984, Ruth was pregnant again with her second child and left at the end of the year, about four months before she was due. Her intention was to stay home with her two children for two or three years. She expected to return to her old job eventually but she understood that there were no promises being made. She never worked for anyone else and after about two years she returned to work for the same employer, this time as office manager. She held that position until she was terminated in September of 2003.
 
If you add up all the time Ruth actually spent working for this employer, it was about 23 years. If you only looked at the last date she returned to her employment in 1986, she had about 17 years of seniority.
 
In this case, the judge, I think appropriately, decided that all of the seniority was relevant. It would have been very important to the judge that these absences were as a direct result of child care issues and Ruth had not worked anywhere else during her absences. In these circumstances the judge had every right, given the case law, to take into account Ruth’s entire seniority and she did.
 
If the employer had had Ruth sign some sort of a document when she returned to work the first or second time confirming her understanding that she was starting a new period of employment and was not getting any credit for her previous employment if reasonable notice ever had to be calculated, this story would have ended differently.
 
It was because Ruth’s employer basically treated her as if she had never been away, in part, that Ruth was successful in her argument. Both times that she returned to work there was no job posting and no application, she just walked back in the door and sat down to work.
 
If she had signed something specifically addressing this issue, the judge would not have let her later argue that she wanted total credit.
 
This story could have ended differently if Ruth had worked somewhere else during either of her absences. If, for example, Ruth had worked for some other employer for even a short period of time during her second, longer absence, most judges would have difficulty allowing her to keep her seniority. Although it would not be impossible, if Ruth had gone to work for somebody else, the situation stops smelling like an extended maternity leave and more like somebody who quit to find greener pastures.
 
If Ruth had stayed home for four or five years instead of just two on the second occasion she probably would have been out of luck. Two years or so to stay home with the children makes sense but an absence of five years, while it might be a good parenting choice, would put the nail in the coffin of the employment relationship for most judges.
 
The baby boomers who had to quit their jobs to take a reasonable length of time off to spend with their newborn children because the legislation at the time was archaic should be most interested in Ruth’s case. If you are never terminated, it will never matter. If you are in court fighting over a severance package, however, those extra years can make a difference.
 
As published in the Hamilton Spectator, January 10, 2009