The British Columbia Human Rights Tribunal’s decision in LaFleche v. NLFD Auto, 2022 BCHRT 88, provides employers with insight into how they should conduct themselves while their employees are on a leave of absence.  The Tribunal found that the employer discriminated against an employee who was on maternity leave on the basis of sex and family status, contrary to section 13 of the British Columbia Human Rights Code, and that it also constructively dismissed her.  The Tribunal made these findings because the employer significantly altered the employee’s job duties when it unilaterally removed her from the managerial position she held prior to her leave,  gave it to her replacement, and did not communicate with the employee regarding her return to work. 

Background

In 2015, the employee commenced working for the employer as its social media manager.  In 2016, she was promoted to marketing manager, reporting to the general manager (GM). In 2017, the GM retired and another individual took on the GM role.

The employee became pregnant, and the employer hired another person (Replacement) to cover for the employee as marketing manager while she took her maternity leave, which began in May 2018. 

In September 2018, the employer again replaced its GM who also supervised the marketing manager role.  During the employee’s maternity leave, the new GM and the Replacement worked together on the employer’s marketing strategy.  The new GM was happy with the Replacement’s work.  

In February 2019, while still on maternity leave, the employee met with the new GM and the employer’s controller.  They agreed the employee would return to work on July 2, 2019, and discussed the Replacement’s staying on.  The GM told the employee they would get back to her at the end of March to discuss her position and duties upon her return to work.  Following this meeting, the employee felt she was being demoted.  She filed a human rights complaint.

The employer did not contact the employee by the end of March 2019 with more information about her return-to-work plan. The employee viewed this lack of follow‐up as confirmation that the employer was terminating her employment.  The employee did not return to work on July 2, 2019.

On July 4, 2019, the employee called the controller, who stated the employee had not been fired and that the employer had responded to her human rights complaint.  When the employee asked when she would receive her Record of Employment (ROE), the controller stated she would receive it once the human rights complaint was finalized.      

On July 4, 2019, the employee filed a complaint against the employer with the Employment Standards Branch (ESB), which led to the employer paying the employee a settlement amount of $3,750 for wages. 

By letter to the employee dated August 20, 2019, the employer took the position that the employee had abandoned her employment when she did not return to work on July 2 as scheduled. This letter advised the employee that the employer would be discontinuing her benefits coverage, effective September 16, 2019, and stated that it deemed that it no longer employed the employee. The employee never responded to the letter, and never returned to work.

In the fall of 2019, the employee enrolled in a doula program, which she expected to complete in March 2023, and registered a business for her doula practice. 

Decision

Did the employer remove the employee from her marketing manager position?

The British Columbia Human Rights Tribunal found that the employer removed the employee from her marketing manager position at the February 8, 2019 meeting.  The Tribunal concluded that the employer told the employee that it was happy with the Replacement’s performance as marketing manager and wanted her to remain in that role, and that the employee’s duties would change, but the employer did not yet know how. 

The Tribunal noted the employer’s failure to communicate with the employee about the changes it was making and what would happen upon her return to the workplace.  It emphasized that while an employee is on leave, the employer is obliged to consult with the employee about significant changes that will be made to their position, as the employee would participate in such a discussion if they were not on leave. 

Did the employer’s conduct adversely affect the employee, including whether it constructively dismissed her?

The Tribunal found that the employer’s acts and omissions adversely affected the employee in her employment, and that the employer constructively dismissed her. 

Adverse Impact

The Tribunal found the adverse impact was the employer’s removal of the employee from her managerial position to an unknown position.  The Tribunal accepted that the employee felt humiliated when she was told she was being removed from her marketing manager position; grieved the position’s loss; felt distressed and nervous about money; and lost sleep, her appetite, a sense of security, and the ability to enjoy her maternity leave.

The Tribunal rejected the employer’s argument that the employee “abandoned” her job, noting that the employer said it would get back to the employee by the end of March with possible return to work “scenarios” but did not do so.

Constructive Dismissal

Noting that “a constructive dismissal occurs where an employer has not formally terminated an employee’s employment, but the employer’s conduct is treated as a dismissal or termination at law,” the Tribunal concluded that its findings that the employer unilaterally determined the employee would not return to her role as marketing manager, and that the employee reasonably understood the employer was significantly altering her job duties, amounted to a dismissal from employment.

Were the employee’s sex and/or family status factors in any adverse impact?

The Tribunal found that the employee’s maternity leave was a factor in her removal from her role and in the constructive dismissal; had she not taken it, she would have continued in her role as marketing manager.  The Tribunal concluded, therefore, that the employer discriminated against the employee on the basis of sex and family status, contrary to s. 13 of the Code.

Remedies

The Tribunal awarded the employee:

• $12,000 in compensation for injury to her dignity; and 
• compensation for:
  
  • 7.5 months of lost wages from July 2019 until mid‐February 2020 in the amount of $40,625; and
  • maternity and parental benefits from mid‐February 2020 to January 31, 2021 in the amount of $29,750 (total $70,375).

The Tribunal subtracted from the $70,375 wages the $3,750 paid to the employee as part of the ESB settlement agreement. 

The Tribunal declined to order compensation for wage loss commencing February 1, 2021, when the employee switched career paths, noting that in choosing to retrain to become a doula, the employee became unavailable for work. It reasoned, “[the employee’s] decision to become a doula turned into a full career change, the financial consequences of which cannot lay fully at [the employer’s] feet.”  Accordingly, the Tribunal did not award the employee compensation for wage loss from February 1, 2021 to January 31, 2022. 

Bottom Line for Employers

NFLD Auto puts employers on notice that if, while an employee is on leave, they unilaterally remove the employee from the position they held prior to their leave and change their role to one that is not equivalent, such an act may amount to a constructive dismissal of the employee.  If the leave is a maternity leave, such act may also be considered discrimination on the basis of sex and family status, contrary to applicable human rights legislation.  Employers may be excused, however, from making such changes if the reason is unrelated to the employee’s leave and made for a bona fide business purpose.    

NFLD Auto also puts employers on notice that when engaging in discussions with employees while they are on leave, they should prepare in advance and make every effort to avoid leaving the employee unclear or worried about the role to which they will be returning.  Employers should also consult with employees about significant changes that will be made to their position while they are on leave, since the employee would participate in such a discussion if they were not on leave.  If during such a discussion, the employer promises to follow up to review details, it should be sure to do so.    

If an employer is considering making any change to the role or employment terms of an employee who is on leave, we encourage them to seek the advice of experienced employment counsel.