Original posting by Howard Levitt in the Financial Post, November 6, 2018
Maternity leave is not a job security blanket.
Upon being hired as a scheduler by Custom Granite and Marble, a business based in Stoney Creek, Ont., Tina Peternel was informed that flexibility in attending early morning starts was critical for her role. Although she formally started at 10:00 a.m., she was expected to be available for early morning calls and meetings. Provided a cell phone by her employer, Peternel received work-related calls as early as 6:00 a.m.
As the parent of two young children, Peternel successfully balanced the competing demands of her work and family life with the support of her mother, with whom she lived.
She then took a year-long maternity leave for her third child. Towards the end, Peternel attended Custom’s offices to discuss the conditions of her return. She was told that, owing to changes in its operations, she would be expected to consistently start work at 8:30 a.m.
Peternel balked. She advised that she had experienced a falling out with her mother who had moved out of the home and that outside daycare had to be arranged. While Peternel had full-time daycare for her infant, she had only arranged for after-school care for her older children. She asked whether she could work the hours of 10:00 a.m. to 5:00 p.m. to cover the before-school care arrangements.
Custom could not agree. In response, Peternel informed it that she would attempt to find before-school daycare for her two older children. Instead, she never returned to work but proceeded to sue Custom claiming that it had failed to accommodate her family status needs and that, by not restoring her to her former hours, she had been constructively dismissed.
Madame Justice Elizabeth Sheard of the Ontario Superior Court of Justice demurred. An employee is not entitled to the same job that she had before the leave if the job would have changed in any event. Had she not gone on leave, her position still would have changed and she would have been required to start at 8:30 a.m. The judge accepted the employer’s evidence that its business had undergone changes during the maternity leave. The scheduler job starting at 8:30 a.m. was an appropriate, comparable position for Paternel.
Significantly, Custom was asking Peternel to do what she had always done: to be available at work early when Custom needed her to be there. Thus, the requirement that she start at 8:30 a.m. was not a fundamental breach of her contract of employment. It was Peternel who was attempting to change the terms of her employment agreement by changing her daily start time to 10:00 a.m.
The final argument made by Peternel was that Custom had failed to accommodate her childcare requirements. However, the court relied on her admission that she could afford childcare for each of her children; that there were pre-school childcare options available to her; and that the hours that she was being asked to attend were not unreasonable. She had not cooperated in the accommodation process and had been less than candid with her employer on her childcare options.
Not only was her action dismissed, Peternel was ordered to pay over $54,000 in legal fees to Custom.
The commonsense approach of the court in this case is useful for employers in approaching increasingly strident demands by employees for accommodation of childcare:
Appreciate your statutory rights Employers have leeway to adjust positions of employees who are on leave for bona fide economic reasons and need not fear the reinstatement obligations under employment standards statutes.
Accommodation is a two-way street An employee does not have the right to simply demand customized hours of work and rely on childcare needs without doing their due diligence in attempting to meet their employer’s requirements.
Don’t be afraid to ask An employer is entitled to enquire what efforts the employee has made to locate suitable childcare and need not simply rely on the employee’s statement. In this case, the employee was found to be untruthful in recounting what she had done to find preschool care.
Carefully draft employment agreements Reserve the right to change hours of work with the minimum notice requirements of the applicable employment standards statute. That provision would allow the employer to make necessary adjustments to hours of work without triggering a constructive dismissal.
Keep records of key exchanges The emails and correspondence between the parties proved to be of crucial importance to the court in determining a chronology of relevant discussions and making findings of fact. Take appropriate steps to maintain those records.