The recent decision of LaFleche v. NLFD Auto dba Prince George Ford (No. 2), 2022 BCHRT 88, highlights the careful approach that employers should take when employees are returning to work after a leave of absence.

In this case, involving an employee seeking to return to work after her maternity leave, the British Columbia Human Rights Tribunal (the “Tribunal”) found that the employer had discriminated against her on the basis of sex and family status, contrary to section 13 of the British Columbia Human Rights Code (the “Code”) and had constructively dismissed the employee by continuing to employ her replacement, failing to return her to her past position, and failing to communicate with her about her return to work.

Background

The employer hired Ms. LaFleche about 3 years before her maternity leave. She began as social media manager before being promoted to marketing manager, a position in which she was successful and worked closely with the general manager.

As Ms. LaFleche prepared for her maternity leave, she assisted with the hiring and training of her replacement, Ms. Callahan, who was initially hired to be a temporary replacement.

During Ms. LaFleche’s year-long maternity leave, the employer replaced the general manager she had been working with, and the new general manager began working with Ms. Callahan on marketing matters. The employer’s marketing strategy also shifted focus from print and radio to online marketing during this time.

Some months before she was scheduled to return to work, Ms. LaFleche met with the new general manager and the senior financial controller. The general manager gave evidence that he understood the meeting would be a “meet and greet” with perhaps some initial discussion about Ms. LaFleche’s return to work. Accordingly, he did not prepare for the meeting or have a finalized plan for her return. During the meeting, the general manager advised that Ms. LaFleche’s replacement, Ms. Callahan, would take on at least some of the marketing manager duties after the positive changes to the employer’s marketing strategy since Ms. LaFleche went on leave. Ms. LaFleche’s role on her return to work was undefined.

The general manager told Ms. LaFleche that they would get back to her by the end of the next month to discuss her return to work position and duties, but no one reached out to her. Ms. LaFleche also did not reach out to her employer – in fact, she filed a human rights complaint just a few days after the meeting, although the employer did not learn of this until some months later. Ms. LaFleche took the employer’s lack of follow-up as confirmation that her employment was being terminated, and she did not return to work as scheduled. Approximately six weeks after her return-to-work date, the employer wrote to Ms. LaFleche advising that it considered her to have abandoned her employment.

The Tribunal’s Decision

Ms. LaFleche claimed that the employer’s conduct amounted to discrimination based on sex and family status, contrary to section 13 of the Code. The Tribunal agreed, finding that the employer removed Ms. LaFleche from her position, which amounted to a constructive dismissal, and that her maternity leave was a factor in its decision. The Tribunal confirmed that the employer was entitled to make legitimate business decisions while Ms. LaFleche was on leave, but that it was not permitted to make changes that left her at a disadvantage compared to other employees who were not on leave. The employer had made changes to the marketing department, and Ms. LaFleche’s position specifically, because it preferred her maternity leave replacement. The Tribunal found that it was clear that Ms. LaFleche’s role would significantly change while Ms. Callahan retained significant marketing manager duties, and concluded that it was unlikely that the employer was considering making Ms. LaFleche and Ms. Callahan joint marketing managers.

Significantly for employers, the Tribunal made these determinations without finding that the employer explicitly told Ms. LaFleche that she would not be returning to the marketing manager position. It was sufficient that she would not be returning to the same duties she once had, that Ms. Callahan would be staying on with some of her past duties, and that the employer did not communicate to Ms. LaFleche that she would be returning to an equivalent position.

The employer’s argument – that Ms. LaFleche, as an employee, also bore some responsibility to navigate her return to work – was not successful. The Tribunal was clear that responsibility to return an employee to work after a leave lies with the employer. The employer bore the responsibility to follow up to address with Ms. LaFleche the changes it was making and the terms of her return, but it took no steps to do so. Instead, it left Ms. LaFleche in limbo.

The Tribunal also stated that an employer’s obligations while an employee is on leave include consulting employees about significant changes made to their position, since they would be included in such conversations if they were not on leave.

The Tribunal awarded Ms. LaFleche $12,000 for injury to dignity and $66,625 in lost wages and benefits, rejecting the employer’s arguments that Ms. LaFleche only lost wages because she chose not to follow up regarding her return to work, did not return to work as scheduled after her maternity leave, and did not apply for many, or appropriate, jobs (mitigation). The Tribunal also awarded loss of EI benefits for Ms. LaFleche’s subsequent post-termination pregnancy, reasoning that, through the loss of her job, she did not attain the number of insurable hours that she needed to qualify for maternity and parental leave benefits for her second child. The Tribunal did not, however, award continuing wage loss for the period when Ms. LaFleche decided to change careers to become a doula, and returned to school. (The Tribunal found Ms. LaFleche’s decision to become a doula was a complete career change, the financial consequences of which should not be the responsibility of the employer.) Finally, the Tribunal ordered the employer to pay a tax gross up for the increased tax liability Ms. LaFleche was expected to experience from the additional income she would have to report for the 2022 tax year due to the lost wages she was awarded.

Key Takeaways

LaFleche serves as a reminder that employers should carefully navigate discussions with employees who are on leave. In this case, a meeting which the manager had understood as a “meet and greet”, and which he did not prepare for, nonetheless included a discussion of the employee’s role upon her return to work which left her with the impression that she would not be returning her to her previous position or an equivalent one. There was nothing wrong with the manager attending the meeting on a “meet and greet” basis, but the employer should have avoided providing partial information at the meeting and leaving the employee confused and concerned about her role. Compounding this, the employer did not follow up with the employee to clarify or explore options with her as it said it would.

In general, absent bona fide business reasons that are completely unrelated to the employee going on leave, employers must return the employee to the same position they held before going on leave, or the employer must reach agreement with the employee regarding any material changes to their job or their compensation. Even placing an employee in a position that is comparable to the one they held before the leave can carry the risk of constructive dismissal, depending on the circumstances.

Employers are encouraged to communicate clearly and consistently with employees, and to prepare for questions that may arise in the return to work context. Efforts should be made to conduct and conclude these conversations well before the leave is scheduled to end. These situations can be complicated and carry risk. We recommend employers seek legal advice whenever contemplating changes to the job, or any other employment terms, of an employee who is on leave.