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British Columbia Tribunal Finds Employer That Unilaterally Removed Employee On Maternity Leave From Management Position Liable For Discrimination And Constructive Dismissal – Employee Rights/ Labour Relations



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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. 

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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