Constructive Dismissal During Maternity

While maternity leave is typically considered to be an unpaid period of time, employees are expected to continue to carry out the essential duties and responsibilities of their employment. If an employer substantially alters an employee’s job duties, or creates a hostile workplace that makes it impossible to carry out those duties, the employee may be entitled to resign and claim constructive dismissal damages.

The term constructive dismissal refers to an employment relationship which has become so dysfunctional and hostile that the employee is forced to resign with immediate effect and not work their notice period. This is different from wrongful termination, which relates to federally regulated jobs and can be found under Division XIV of Part III of the Canada Labour Code.

In a recent case, the British Columbia Human Rights Tribunal found that an employer discriminated against an employee on the basis of her sex and family status, as well as constructively dismissed her. The case involved a company that employed the daughter of its owner, who was on maternity leave when she learned that her father had given her manager position to his new partner, and did not intend to restore her to this managerial role upon her return from maternity leave. The Tribunal held that this was a significant change in the employee’s working conditions and caused her to suffer adverse effects including loss of sleep, appetite, and a sense of security and enjoyment of her work.

Constructive Dismissal During Maternity Leave

For a claim of constructive termination to succeed, an employer must be guilty of a fundamental breach of the express or implied terms of an employee’s contract of employment. Breach of an express term could involve a change in salary, or breach of an implied term such as the duty to maintain trust and confidence would be sufficient.

To prove that an employee has suffered a fundamental breach of their contract, it must be shown that the employer’s actions were a substantial cause of their resignation with immediate effect. This could include one-off events such as the example above, or a series of incidents over a reasonable time frame. It can also be the result of an employer’s failure to deal with a grievance or to respond within a reasonable timeframe.

If you think that your employer has violated the law in your case, it is important to talk to a lawyer. Achkar Law specializes in helping both employers and employees understand their rights under Ontario’s employment laws. If you believe that you have been unfairly treated while on maternity leave, or need to file a constructive dismissal claim, contact us today. Our team of experienced lawyers can help. The initial consultation is free of charge. Our lawyers can also help you understand how to make a claim through your employer’s appeals process, if there is one. This will usually be outlined in your company handbook or in a policy document. If you do not have a copy, please ask your employer for one.