[Haley O’Halloran]

in reply to: Release letter for BC #95499

Hi Karoline – after discussing with our team, we have a high volume of content to produce this month so I will refer you to the government of BC’s Release Form template and a Consent & Release Template for the time being. We will have this template created within the next few months and I really appreciate your valued suggestion!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Employee termination #95495

In British Columbia, employee terminations are governed by both:

Employment Standards Act (ESA) – which sets out minimum statutory requirements for notice or pay in lieu.

Common law – which may provide a greater entitlement based on factors like age, tenure, position, and availability of similar employment.

For severance calculations, employers must consider both, and provide at least what is required under the ESA, though common law entitlements are often higher unless a valid employment contract limits them.

Statutory (ESA) Approach:
ESA would consider Jan 2022 as the rehire date and exclude previous service due to the resignation (i.e., break in service).

Therefore, under ESA: ~2.5 years of service (Jan 2022 – current date, excluding mat leave).

Common Law Approach:
Courts sometimes treat the employment as continuous if the resignation and rehire were connected (e.g., personal reasons but rehired within a few months under similar terms).

However, a 5-month break (Aug 2021–Jan 2022) may break continuity unless:

-The resignation was induced or prompted by the employer,
-There was a mutual understanding of return,
-No formal release was signed, and
-The job duties and terms were substantially similar upon return.

If you treated her as a new hire in Jan 2022, this will likely limit her claim under common law, unless challenged and continuity is argued.

Severance Pay Guidance
1. Minimum ESA Notice or Pay in Lieu:
For 2.5 years of service, the ESA minimum is:

-2 weeks’ notice or pay in lieu (as she hasn’t reached 3 years).

2. Common Law Reasonable Notice:
More generous than ESA, based on Bardal factors:

-Age (not provided, but relevant if 45+),
-Position/role (seniority/responsibility matters),
-Years of service (arguably 2.5 or 5+ depending on continuity),
-Availability of similar employment.

Typical awards range from 2–6 weeks per year of service, often totaling 2–6 months for short-to-mid-term employees in professional roles.

If treating her as having 2.5 years of service, a reasonable common law notice could be:

-2 to 3 months’ pay in lieu of notice.

If arguing continuous service from Aug 2018, that could increase to:

-4 to 6 months’ pay in lieu (depending on her age and role).

Recommendations
If her contract limits her to ESA minimums: 2 weeks’ pay in lieu (safe and compliant).

If no limiting contract and no claim of continuous service: consider offering 2–3 months’ pay in lieu to align with common law expectations.

If continuity may be challenged (and you want to mitigate risk): a more generous package of 3–4 months’ pay in lieu could help prevent litigation.

Document your rationale clearly, especially if you do not recognize pre-2022 service.

Suggested Next Steps
Review her current employment contract – Does it limit severance to ESA minimums?

Consult an employment lawyer – Especially if there is a risk of the employee asserting prior service.

Prepare documentation – Include a written breakdown of service periods and basis for your severance calculation.

Refer to the HRInsider Termination Letter Template and our Severance Agreement Template after speaking to legal counsel to ensure you are following through with these actions compliantly!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Body Odour #95493

This can be an awkward issue to address with any team member, whether it be body odour or using too much perfume – especially as the weather gets warmer. You are clearly coming at this situation with an empathetic viewpoint, and I think you have all the correct measures in place. If possible, I would send out a reminder via email and posted on any community bulletin boards in common areas as such: “Hey team, as the weather warms up we want to remind everyone to maintain good hygiene, apply deodorant at least once daily, and ensure you are not spraying too much perfume/cologne on yourself before work – it helps show respect for your coworkers and keep this a pleasant space to work in! Please refer to our respectful workplace policy and body odour policy if you have any questions or need more information.” This way, you are not singling out the employee.

If the issue persists, it is okay to have a one-on-one meeting with this employee in a private setting about your concerns. You have approached this topic with sensitivity and I am sure you will do the same when addressing it with your team and, if it leads to it, with the individual in question. Check out our article “Talking About Hygiene Concerns In The Workplace” and you can adapt our Scented Products In The Workplace Policy to address body odour and hygiene concerns. Best of luck and I hope this helps!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Vacation Pay Out #95481

Alright, let’s break this down.
-The employee lives in Ontario, so Ontario Employment Standards Act (ESA) applies.
-Less than 5 years of employment.
-Vacationable earnings: $180,000 (assumed to be annual earnings for 2025).
-Only 1 vacation day taken in 2025.
-Termination date: May 31, 2025.

Relevant ESA Rules (Ontario)
For employees with less than 5 years of service:

-Entitled to 2 weeks of vacation per year.

Vacation pay = 4% of gross wages (i.e., vacationable earnings).

If vacation time was not taken, unused vacation days must be paid out at the time of termination.

Step-by-Step Calculation
1. Annual Vacation Entitlement in Days
Assuming a 5-day workweek:

2 weeks = 10 vacation days per year.

2. Vacation Pay Accrual (for Jan 1–May 31, 2025)
Time worked: 5 months out of 12 = 5/12 of the year.

Vacationable earnings from Jan 1–May 31:

5 over 12 × 180,000 = 75,000

Vacation pay earned:

4% × 75,000 = 3,000

3. Vacation Taken
1 day taken = 1/10 of annual entitlement.

That’s equivalent to:

1 over 10 × 4% × 75,000 = 300

4. Vacation Pay Owing
Total accrued: $3,000

Already used (1 day): $300

Owing at termination:

3,000 − 300 = $2,700
​
Final Vacation Pay Owing: $2,700
This amount should be paid in addition to any other wages owing at the time of termination.

Additional Notes
If the employee’s vacation pay is paid on each paycheque (some employers do this), ensure you check if any of the $3,000 has already been paid.

Always double-check employment contracts or company policies for any enhanced entitlements. Learn more about vacation pay calculation requirements and how to calculate vacation pay on the HRInsider site.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Fixed Term Contracts – Duty to Accommodate #95480

This is a nuanced situation involving fixed-term employment, layoffs, and accommodation obligations under human rights law. Here’s a detailed breakdown of the legal and practical considerations:

1. Human Rights and Duty to Accommodate
Under the BC Human Rights Code and WorkSafeBC policies, employers have a duty to accommodate employees who are injured or disabled, to the point of undue hardship. This obligation can extend beyond the original term of employment, especially when the employee was still participating in a return-to-work program due to a workplace injury.

Key Implication:
If you are recalling other laid-off employees, excluding the accommodated employee could be seen as discriminatory, especially if the only reason for exclusion is their disability status or ongoing accommodation needs.

2. Fixed-Term Contract Expiry During Layoff
The expiry of the fixed-term contract during the layoff is significant, but it does not automatically end your duty to accommodate. Courts and tribunals have recognized that employers cannot rely solely on contractual terms to avoid human rights obligations.

If you are effectively reinstating the same role or a similar one, and you extended contracts for others, failing to do the same for the accommodated employee could expose the organization to legal liability (e.g., for discrimination or failure to accommodate).

3. Recall Obligations and Layoffs
If the employee was laid off with others due to lack of inventory, this in itself is not discriminatory. But once the recall process starts:

If you are recalling others to similar roles, you should give serious consideration to recalling the employee on accommodation.

This is especially important if the position still exists or is being reoffered.

Even if the original fixed-term contract expired, you may be viewed as offering a new employment opportunity, and you must do so in a non-discriminatory manner.

4. Best Practices
To avoid allegations of discrimination:

-Offer re-employment to the accommodated employee, assuming the role is available and can support the accommodation.
-Document your efforts to accommodate and your rationale for any decision made.
-If you have concerns about operational feasibility of accommodation under the new circumstances, you should assess and document the undue hardship involved.

You may also want to consult legal counsel or an employment law expert to confirm your specific risks and obligations.

Read more about the duty to accommodate here.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Ontario Medical Leave #95479

Based on the situation you described, here is a detailed overview of medical leave and job protection entitlements under Ontario’s Employment Standards Act (ESA) and Canada’s Employment Insurance (EI) system, as they relate to an employee who became incapacitated on February 24, 2025, after four months of employment.

1. Ontario’s ESA: Sick Leave and Job Protection
Under the Ontario Employment Standards Act (ESA):

Sick Leave Entitlement
Employees are entitled to up to 3 unpaid days of job-protected sick leave per calendar year after 2 consecutive weeks of employment.

Since your employee had 4 months of service, they would have been eligible for this leave at the time of hospitalization.

However, this leave only protects 3 days, and does not extend job protection beyond that period.

Critical Illness Leave / Family Medical Leave / Infectious Disease Emergency Leave (IDEL)
Other longer ESA-protected leaves (e.g., Critical Illness Leave, Family Medical Leave) require:

-6 months of continuous employment, which your employee did not meet.

Infectious Disease Emergency Leave (IDEL), created during COVID-19, is only available in specific pandemic-related situations and likely not relevant here unless hospitalization was due to COVID.

Conclusion under ESA
ESA would have provided job protection for only 3 unpaid sick days.

Because the employee was absent and uncommunicative for over 2 months with no medical communication, you were within your rights under ESA to conclude employment after reasonable attempts at contact.

2. Federal EI Sickness Benefits
Employment Insurance (EI) Sickness Benefits provide temporary income support if an individual cannot work due to medical reasons.

Eligibility Requirements
-600 insured hours of work in the 52 weeks before the claim or since the last EI claim.
-A medical certificate confirming the illness/injury.
-Apply within 4 weeks of becoming unable to work.

Key Issues in This Case
If the employee only worked 4 months (approx. 16 weeks), and assuming full-time hours (e.g., 37.5–40 hrs/week), they may have reached around 600 hours.

However, if they were part-time or casual, they may not have accumulated enough hours.

The late application could be problematic. EI applications normally must be submitted within 4 weeks of work interruption, but:

Late applications can be accepted with a valid reason—e.g., hospitalization and no phone access could be a sufficient explanation. They would need to provide proof of hospitalization and reason for delay.

Benefit Details
-Up to 26 weeks of sickness benefits (as of recent changes).
-Paid at 55% of average weekly earnings, up to a maximum.

3. Human Rights Consideration
While not directly part of ESA or EI, under the Ontario Human Rights Code, employers have a duty to accommodate disability, including mental or physical illness, to the point of undue hardship. However:

The duty to accommodate is triggered only when the employer is made aware (or should reasonably be aware) of the disability.

In your case, if the employee never informed the employer until May 9 and you had no evidence or reason to know they were hospitalized, your duty to accommodate would not have been triggered earlier.

Next Steps
EI Application Support:

You may wish to support the employee in submitting an EI sickness benefits application and a late application explanation.

Provide a Record of Employment (ROE) if not already submitted.

Consider Reinstatement:

Reinstatement is not required under ESA or EI.

However, if feasible, you could consider re-hiring or accommodating the employee based on medical documentation and operational capacity.

Seek Legal Advice:

Given potential human rights implications and the sensitive nature of a medical leave claim, it’s wise to consult employment legal counsel for your jurisdiction to assess risks and options. While you navigate this matter, you can also check out resources on the HRInsider site, like our Special Report on navigating sick leave.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Workers Compensation Coverage – Remote Workers #95477

In your situation, where the company is registered and has a physical office in Ontario but employs remote workers who live and work in Alberta (including global travel), you will need to register and maintain WCB coverage in Alberta for those employees.

Alberta WCB Coverage Requirements
Who Must Register
The Workers’ Compensation Board – Alberta (WCB-Alberta) requires any employer with workers in Alberta to register, even if:
-The business is based in another province (e.g., Ontario).
-The workers are remote and work from home.
-There is no physical office in Alberta.

Remote and mobile workers who are based in Alberta are considered “working in Alberta,” and therefore, WCB-Alberta coverage typically applies.

Relevant WCB-Alberta Guidance
WCB-Alberta specifically states that:

“If you hire workers who live and work in Alberta (even from a home office), you must register with WCB-Alberta, regardless of where your business is headquartered.”

Ontario WSIB Considerations
If your company is already registered with WSIB in Ontario for employees working out of the Ontario office, that coverage applies to Ontario-based employees only.

WSIB coverage does not extend to employees residing and working in Alberta.

Interprovincial coverage is not automatically portable, meaning each province typically requires separate registration with its respective workers’ compensation board.

Global Travel Element
Employees who travel internationally but are based in Alberta for their home office still fall under Alberta jurisdiction for WCB purposes.

If they sustain a work-related injury while abroad, Alberta WCB would generally provide coverage.

You may also want to check for any necessary supplemental international travel coverage or health insurance for business travel.

Penalties for Non-Compliance
Failure to register with WCB-Alberta when required can result in:
-Fines.
-Retroactive premiums.
-Denial of coverage for injured workers.
-Legal liability in case of workplace injuries.

You should:
-Register with WCB-Alberta as an out-of-province employer with workers in Alberta.
-Maintain your WSIB registration in Ontario for Ontario-based employees.
-If applicable, consider securing travel or global accident insurance for traveling workers.

You can contact WCB-Alberta directly or visit https://www.wcb.ab.ca to confirm your classification and complete registration.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Disciplining employee post investigation retaliation #95440

Here are some recommended actions to take based on best practices:

1. Acknowledge and Take the Complaint Seriously
The first and most important step is to formally acknowledge the complaint from the complainant and thank her for bringing it forward. Emphasize that retaliation of any form is strictly prohibited under your organizational policy and applicable employment and human rights legislation (e.g., in BC or Canada more broadly, retaliation is prohibited under both the Human Rights Code and Occupational Health and Safety regulations).

2. Assess the Nature and Evidence of the Retaliation
Before issuing disciplinary measures, conduct a preliminary assessment of:

-Specific behaviors reported (dates, incidents, people involved)

-Context of those interactions (e.g., are there patterns, was there intent?)

-Any supporting documentation or witness observations

-Whether these behaviors violate your anti-retaliation or respectful workplace policies

Even if the alleged behaviors seem “subtle” (e.g., coldness, exclusion), they may still qualify as retaliatory if they can be shown to negatively impact the complainant’s work environment because she participated in the investigation process.

3. Interview the Alleged Retaliators
Call the named individuals in for a confidential meeting. This is not yet a disciplinary step, but an opportunity to:

-Inform them of the concern (without disclosing confidential details)

-Remind them that retaliation is a serious matter and is grounds for discipline

-Ask them to provide their side of the story

-Reiterate expected workplace conduct going forward

Avoid rushing to a written warning unless you’ve substantiated that retaliation likely occurred and that the individuals had reason to know that their behavior would be perceived as punitive.

4. Take Proportionate Corrective Action
If the facts support that retaliation occurred, a written warning may be appropriate, especially if:

-The behavior was intentional

-The individuals had been previously warned

-The impact on the complainant was significant

In less clear-cut cases, a verbal warning documented internally and a reiteration of expectations may suffice. Also consider:

-Mediation or facilitated dialogue, if appropriate and safe

-Monitoring the situation, including checking in with the complainant regularly

5. Follow Up and Document Everything
Keep detailed, confidential records of:

-The complaint

-Any interviews held

-Outcomes and decisions made

-Communicate to the complainant what actions were taken (in general terms, maintaining confidentiality of others)

Make clear that retaliation is being taken seriously and that she should continue to report any concerns.

6. Reinforce Organizational Culture and Training
This case highlights the need for:

Refresher training on harassment, retaliation, and respectful workplace behavior

Clear internal policies that outline:

-What retaliation is

-How it will be addressed

-Everyone’s responsibilities post-investigation

I hope this helps and best of luck with this process!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Termination #95399

Termination for cause is a serious employment action under Ontario law and sets a very high threshold. Below is a breakdown of the key legal considerations in your scenario:

1. Verbal Remote Work Agreement: Legal Weight
Under Ontario employment law, verbal agreements can hold legal weight if there is clear evidence that both parties mutually agreed to specific terms, such as a remote work arrangement. Even though the written offer did not mention remote work, if:

-The prior manager allowed and endorsed the remote work arrangement,

-The employee worked remotely consistently with management knowledge, and

-There were no formal objections,

…then an implied term may have been created. Courts consider the entire employment relationship, including conduct and oral agreements, not just written contracts.

However, verbal agreements are more difficult to prove and enforce. The change in management and lack of documentation could weigh against the employee in a dispute.

2. Refusal to Attend a Single In-Person Meeting
A one-time refusal to attend an in-person meeting—especially if justified (e.g., conflicting job interview)—is unlikely to amount to just cause for dismissal.

Ontario courts have consistently ruled that a single incident of insubordination does not meet the threshold for cause, unless it’s egregious or part of a larger pattern of misconduct. Courts look for:

-Repeated refusal to follow reasonable instructions

-Willful misconduct or disobedience

-Clear communication that failure to comply would have consequences

Here, the employee did notify the manager about the conflict, which weakens the case for insubordination.

3. Evidence Required to Prove “Lack of Productivity”
To terminate for cause based on performance, the employer must meet a very high evidentiary standard, typically requiring:

-Documented performance issues over time

-Clear expectations communicated to the employee

-Opportunities to improve, including written warnings and performance improvement plans (PIPs)

-Proof that support and guidance were provided, and the employee still failed

Mere subjective concerns or vague dissatisfaction are not sufficient.

4. Risk of Terminating Without Prior Written Warnings
Yes, terminating without progressive discipline or written warnings exposes the employer to wrongful dismissal claims. Courts expect employers to:

-Clearly communicate deficiencies

-Allow a reasonable period to improve

-Warn the employee of possible termination if issues persist

Skipping these steps undermines a claim of just cause.

5. Should the Employer Pursue Termination for Cause or Without Cause?
Termination for cause is not likely defensible here. It would be very risky to pursue, and the employer could face:

-A wrongful dismissal claim

-An order to pay reasonable notice or pay in lieu, potentially several months’ salary

-Reputational and legal costs

Recommended approach: Proceed with termination without cause, while offering appropriate notice or severance in line with the Employment Standards Act, 2000 (ESA) and possibly common law (which may require more than ESA minimums). However, I am not a lawyer and highly recommend you seek out legal counsel for advice on this matter.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Eliminating Position #95382

When eliminating a position and offering an employee a different role, there are several legal considerations to address—especially with a long-tenured employee (10 years in this case). Whether this constitutes constructive dismissal and triggers severance obligations depends on the nature of the role change, employee consent, and employment standards legislation in your jurisdiction. To avoid constructive dismissal claims, please consult legal counsel as this question is beyond my scope and we want you to remain as compliant as possible.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Manager’s verbal intention to resign. #95375

Hi Mirella. While I appreciate you using our HR resources like the Ask The Expert to navigate this process, you have been asking quite a few questions and I highly recommend seeking out legal counsel at this point, or hiring an HR manager. Going forward, you will have many instances like this one and you cannot rely on forums alone to guide you in a fully compliant manner.

Below I have drafted a way to express this letter, but this is for formatting purposes only. The content of the letter should be discussed with an HR Representative and a lawyer to ensure you are doing the best thing in this situation and doing it legally.

Subject: Transition and Next Steps

Hi [Employee],

Thank you for meeting with me on Monday, April 28, 2025, and for openly sharing your thoughts regarding your current role.

You indicated that you feel the position is not the right fit for you, despite your best efforts, and that you would like to either transition to a different role within the company or be given time to seek alternative employment before formally leaving.

After reviewing your situation and exploring available options internally, we unfortunately do not have an alternative position at this time that aligns with your current skills and interests.

Given this, we understand you are expressing an intention to resign but are requesting a transition period while seeking new opportunities. We kindly ask that you confirm your intended last working day in writing so that we can plan appropriately and ensure a smooth transition.

We are open to discussing a reasonable notice period to support your job search while maintaining business continuity. Please let us know your preferred timeline (e.g., 4 weeks, 6 weeks), and we will do our best to accommodate it based on operational needs.

We appreciate your professionalism during this process and are committed to supporting you through this transition.

Additionally, your request to take personal unpaid time off on Wednesday, April 30, Thursday, May 1, and Friday, May 2, 2025, is approved.

Thank you again, and we look forward to working with you during this period.

Best regards,
[Your Name]
[Your Position]

-HRInsider Staff

[Haley O’Halloran]

in reply to: Termination #95368

There is no minimum age at which common law notice applies — it applies to any terminated employee unless their employment contract limits notice to statutory minimums (and the contract is enforceable).

Age affects the length of the notice period, not the eligibility for it.

Younger employees (e.g., under 30) might receive shorter notice, even if they have significant service.

Senior employees (especially older, long-service employees) are seen as having greater difficulty finding re-employment and are thus awarded longer notice periods.

Here’s a rough idea (though actual awards depend heavily on individual circumstances):

-Short-service, young employees: 2–4 months.

-Mid-age, mid-service employees: 4–8 months.

-Older, long-service employees (50s/60s, 20+ years of service): 12–24 months or more.

Courts in Canada generally cap common law notice at around 24 months, although extraordinary cases (usually involving very senior, long-term employees) may exceed this. Therefore, common law notice is triggered upon termination without cause, regardless of age. Age impacts how much notice is owed — older employees typically get more notice because re-employment prospects are harder.

-HRInsider Staff

[Haley O’Halloran]

in reply to: How many HR representatives should be employed for 160 employees? #95366

A widely accepted industry benchmark for HR staffing is:

1 full-time HR professional per 100 employees.

This rule of thumb is used across many industries (especially in North America) and is supported by organizations like SHRM (Society for Human Resource Management).

For 160 employees, you would typically expect:

1.5 to 2 HR staff — meaning either:

2 full-time HR representatives, or

1 full-time HR generalist and 1 part-time or specialized HR support (e.g., payroll, benefits coordinator).

You can read more about the correct HR-to-Employee ratio on HRInsider here. Please use our search function for any more queries you may have! We post new content every day.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Accommodating a return to work from maternity leave. #95365

In most jurisdictions, an employer’s ability to ask for personal information — such as proof of a child’s daycare waitlist — is strictly limited by privacy laws and human rights legislation. Information requests from employers must be:

-Reasonable,

-Necessary for a legitimate business purpose, and

-Proportional to the need being addressed.

In Canada (especially British Columbia, where privacy law is strict): The Personal Information Protection Act (PIPA) allows employees the right to deny providing such information.

When It Might Be Allowed
A company might be able to ask for some proof only if:

-It is tied to an official workplace accommodation request (e.g., a flexible work schedule).

-There is a direct and demonstrable impact on work obligations (e.g., requesting extended leave or other specific benefits related to childcare).

-The information requested is minimally invasive — for instance, a simple confirmation letter from a daycare provider without revealing unnecessary details.

However, even in these cases, the employer would typically need to justify:

-Why they need that specific proof,

-Why less intrusive proof (such as an employee’s own written statement) wouldn’t be sufficient.

Important: The employer usually cannot demand the names or details of multiple daycares unless absolutely necessary. Generally, verifying that the employee is seeking daycare arrangements would be sufficient.

Risks for the Employer
If an employer requests more information than necessary, they could be:

-In violation of privacy laws (which could lead to penalties or complaints to a Privacy Commissioner).

-Subject to a human rights complaint if the request appears discriminatory or overly invasive.

-Potentially liable for constructive dismissal claims if the employee resigns due to privacy breaches.

A more appropriate request would be:

“Could you please provide confirmation that you are actively seeking childcare placement, such as a generic letter or email from a daycare provider?”

-HRInsider Staff

[Haley O’Halloran]

in reply to: When can a company terminate a worker who has returned from a leave. #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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