Is an Employee Entitled to the "Position" they Held Prior to a Maternity Leave?

Updated: May 10, 2019

The decision of United Food and Commercial Workers International Union, Local 333 and Paragon Protection Ltd., 2017 CanLii 26156 (ON LA) [hereinafter “United Food”] sets a new standard for employers in terms of defining “position” in the context of where to return an employee following a leave of absence.

In United Food, the Grievor, a Concierge, filed a grievance alleging, upon returning from maternity leave, she was unjustly removed from her regular work site. She alleged the employer violated its contractual obligation to her by not providing work in accordance with the collective agreement and the employee’s conditions of employment. She further alleged she had been discriminated against based on gender and family status and the company had violated the Human Rights Code [the "Code"], the Employment Standards Act, 2000 [the "ESA"] and the collective agreement. As remedy, the Grievor requested she be offered work at her regular work site address, prior to her leave.

The employer denied the grievance, stating in part, the client at the site where the Grievor worked prior to her leave, requested she not return, as they were pleased with the Grievor’s replacement and wanted to avoid more turnover. The employer went on to state it had advised the Grievor on several occasions, that upon her return to work, the employee would be offered the same position (i.e. Concierge), the same schedule (i.e. afternoons) and the same rate of pay (i.e. $13.00/hr).

Here were the questions to be determined at arbitration and for many employers, this issue is a common and challenging one. What are employers to do when, during an employee’s leave, the temporary replacement is a better fit? Are returning employees entitled to the job they held prior to their leave?

While generally speaking, the answer is yes - employees must be returned to the position they held when their leave began, this case ordered where the employment contract makes clear flexibility concerning work conditions, an employee is not, upon return, entitled to the same exact position held prior to the leave, even if that job is still in existence. Rather, a comparable position is sufficient. This arbitral determination is what makes this case so important for employers. Here’s what helped make that determination.

The nature of the work for a “Concierge” lends itself to moving to various sites and working for different clients. The Grievor’s signed “Employment Agreement – Employment Contract” with the employer referenced “interest in mobile”, later confirmed by the Grievor to mean working from site to site. Additionally, the Grievor’s prior employment with a security services company, provided clear evidence that jobs of this nature require working in various locations.

The language in the employer’s Collective Agreement referenced circumstances where employees are removed from their work site as a result of a written client request. If the employee decides not to grieve the removal, the company is to make reasonable efforts to place the employee at another site immediately. That site is not to be an unreasonable distance from their home, unless consented to by the employee.

It further referenced the nature of the security services business as requiring employers to transfer employees from one location to another. Should that occur, the Collective Agreement stated, in part, employees shall be given three choices of alternate work that are within a reasonable distance of the original work site or their residence, whichever applies.

Accordingly, the arbitrator found, by any reasonable standard, when the Grievor entered employment with the employer, she was aware that employees in this particular industry do move from location to location and further, subject to the Collective Agreement, there was in fact a need for the employer to be able to transfer its employees to various sites. No violation of the Collective Agreement was found.

The Greivor here, took a leave under Part XIV of the ESA. Section 53(1) of the ESA provides, when an employee’s leave concludes, the employer shall reinstate the employee to the position most recently held if it still exists or a comparable position in the event it does not.

The term “position” was not defined in the Collective Agreement. The only position in the bargaining unit, was that of “security guard/security officer”. Evidence supported a Concierge does the duties and responsibilities of that position.

The assignment of Concierge was determined to not be limited to working at a specific work address. The Arbitrator determined the reinstatement of the Grievor to work was to be done in a manner such that the she was able to continue her employment, following her leave, in a “comparable” position if the original position was not reasonably available. A comparable position was deemed to be found. The Grievor understood the nature of the industry and did not hold the position of “Concierge” at that location. She was offered various positions as “Concierge” that were viewed as being reasonably accommodating to the Grievor. Ultimately, the Arbitrator found, the employer, by not reinstating this Grievor when her maternity leave expired to the same work address/”position” she was at prior to her leave, did not violate the ESA.

In view of the Code it was determined that the Grievor did belong to a group protected under the Code, but suffered no adverse treatment by the employer as is required to substantiate a Code violation. Not reinstating her to the same “position” while offering her alternate work locations did not violate the Code.

Please contact us if you would like to discuss how this might apply to your employees