A legal twist in Canada's 'mat leave' law

A pregnant woman at her office work station

TEXT OF STORY

Kai Ryssdal: We don't do maternity leave in this country the same way a lot of other countries do. First of all, we don't even officially call it maternity leave. We call it "Family and Medical leave." It lasts 12 weeks. Second of all, you don't get paid for it. There are some states that do have paid parental leave, but there's no federal law here that requires paid time off.

In Canada, women are entitled to as much as a year for maternity leave. They call it "mat leave" up there. Canadian women do get some pay while they are out, and employers generally set their jobs aside for them. Emphasis on the "generally" part.

Marketplace's Sean Cole has more.


Sean Cole: In April 2006, Lisa Dhillon started working at an energy and gas company outside Toronto. She didn't want us to say which one because they're still in a nasty legal dispute.

Lisa Dhillon: I was formerly a sales specialist and then quickly was promoted to regional sales manager. And then I got pregnant.

In the beginning of '08. She planned a year-long maternity leave starting that fall. Now, in Ontario, there's something called The Employment Standards Act. It says an employer has to reinstate someone after mat leave to the same job or a comparable one. Unless -- and this is the sticking point -- the reason for termination has nothing to do with the leave. So, Lisa's boss brings in a temp, tells Lisa to train her.

Dhillon: And I might have done an awesome job, too awesome of a job I guess, 'cause she is still there and I'm not, but anyways.

Lisa has her baby. And 11 months into the leave, her boss calls.

Dhillon: And did a termination phone call. Didn't even do it in person.

They said her job didn't exist anymore; part of it had moved to Illinois. Meanwhile, the company was expanding into new markets and had hired the temp full-time.

Dhillon: I was shocked. I quickly went to Google, and I came across my lawyer.

Named...

Daniel Lublin: Daniel Lublin.

Of Whitten & Lublin in Toronto. He's an employment lawyer. And he says he sees cases like this all the time. That sticking point, the "nothing to do with the leave part," he says it's effectively a loophole for employers.

Lublin: It's too easy for them to create the appearance that a job doesn't exist when essentially that job has been unbundled and repackaged and redistributed to other employees. In other words, the department didn't shut down, and the job exists maybe not in name but in form.

And maybe the company likes the temp better than the woman on leave, which is what Lisa Dhillon suspects.

Dhillon: I could've done my manager's job, no problem.

Cole: You were a threatening presence.

Dhillon: I was a threatening presence.

Cole: I feel just scared right now.

Dhillon laughs

Dhillon: Yeah, I know.

Lublin: But I find a lot of times it's "the out of sight out of mind" approach. You know, companies have had to make cut backs especially over the last few years, and it's easiest to get rid of the person who's not there.

Lublin says he's seen a surge in these cases over the last few years due to the recession. So naturally, a lawyer for the employers' side would have seen the same thing. Right?

Kristin Taylor: No. And I've heard that ad hoc impression previously.

Kristin Taylor is a partner with the firm Fraser Milner Casgrain. She represents employers of all stripes -- manufacturing, finance. And wrongful dismissal claims are part of the gig. But that "nothing to do with the leave" loophole?

Taylor: I don't think this is a loophole in the statute. I think this is the statute recognizing that you're entitled to the same treatment. You're not entitled to better treatment because you're on the leave. When that person is affected along with all of their peers around them? Well, they shouldn't have a greater right, right? They should have the same right.

And yet she says women can get preferential treatment under the statute, sometimes unknowingly. She's had clients who were about to lay someone off, found out that person was pregnant and then spared her.

Taylor: Because nobody wants to be that employer.

In one case, she says, a client broke the bad news to an employee who responded, "You can't fire me, I'm pregnant." The client didn't know that. Still, the employee took the case to the Ministry of Labour. The adjudicator wanted hard evidence that the firing decision had been in the works for a while.

Taylor: An e-mail trail or a paper trail. It had to be written, because they weren't just gonna take their word for it.

Cole: I can tell how you feel about this by how you're telling the story.

Taylor: Sorry, yeah. It was a little bit frustrating, shall we say?

The employee won and got a settlement. That's the thing: Once an official complaint is filed, the process is very employee friendly. And by that time, the job itself isn't always the issue anymore.

Lublin: A lot of times the women are coming to me and saying, "You know what Daniel?"

Daniel Lublin.

Lublin: "I'm so mad. I don't wanna go back," is what I'll hear a lot of times, "I don't wanna be reinstated. So what can you do for me?" And at that point we're looking at compensation.

Which is the case with his client Lisa Dhillon. Sort of.

Dhillon: I mean, it is about the money, but it's not about the money. I went to Daniel and I said "You know what Daniel? This is just a matter of principle with me. I don't want them to do this to anyone else again."

So far Dhillon's been through two settlement hearings, an appeal from the company and there's a third hearing this coming January, after which she hopes her point will be made. She is working again. Not for her old company. For a competitor.

In Toronto, I'm Sean Cole for Marketplace.

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