When can a company terminate a worker who has returned from a leave.

[MIRELLA BENNATI]

#95334

Forum: Private

Hello,

When can a company terminate a worker who has returned from a maternity leave eg: 6 months?

Please advise.
Thank you.
Mirella

[Haley O’Halloran]

#95339

Terminating an employee who has recently returned from maternity leave must be handled with extreme caution, as both employment standards legislation and human rights law provide strong protections against dismissal in this context.

Here’s what you need to know:

1. Protection from Termination: Employment Standards

A worker cannot be terminated or laid off for taking or planning to take maternity or parental leave.

Protection extends to after the leave ends, meaning you cannot dismiss the employee because of the leave or any related issues (e.g., needing accommodations for breastfeeding or child care).

Even 6 months post-return, the law presumes retaliation if the termination is closely tied in time to the leave—unless you can clearly show otherwise.

2. When Termination May Be Permitted
You can terminate a returning employee only if:

The reason is completely unrelated to the maternity leave, and

You have strong, well-documented, non-discriminatory reasons, such as:

Performance issues, with documented warnings and improvement plans.

Reorganization or redundancy, affecting multiple employees, not just the returning mother.

Misconduct (e.g., breach of policy), clearly documented and consistently applied.

Key Rule: The burden is on the employer to prove the termination was not discriminatory or retaliatory.

3. Risks of Wrongful or Discriminatory Dismissal
If an employer terminates a returning mother without clear justification:

The worker can file a human rights complaint for discrimination based on sex and family status.

She may also pursue a wrongful dismissal claim, seeking damages for lost income and mental distress.

In unionized settings, a grievance may be filed and could lead to reinstatement.

4. Best Practices Before Considering Termination
If you are contemplating termination:

Consult legal counsel before taking action.

Ensure the employee’s maternity leave or accommodation needs played no role in the decision.

Gather and review documentation of job performance or conduct.

Be consistent: Has this reason been applied equally to others in similar situations?

If redundancy is the reason, demonstrate that other roles were also eliminated.

5. Alternatives to Termination
If there are concerns about performance or fit:

Use a performance improvement plan (PIP) before considering dismissal.

Consider reassignment, if available.

Offer a mutual separation package, if appropriate.

I am not a lawyer, and this is a matter that could result in a wrongful dismissal claim, so of everything written here, I hope your biggest takeaway is to speak with a legal professional who can guide you through this complicated matter. Best of luck!

-HRInsider Staff

[Author]

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