You've made the decision, but before you communicate it to the employee you receive a note from a doctor putting the employee off work for medical reasons. Or, the employee arrives at your door ecstatic because she's pregnant and going on maternity leave. What happens when a leave of absence occurs before you say "so long" to the employee. Some general rules and tips from recent cases follow.

Recent Caselaw

In the recent decision of Parent v. Spielo Manufacturing Incorporated, 2013 NBQB 394, the New Brunswick Court of Queen's Bench upheld the termination of an employee who brought a claim for wrongful dismissal. The employee claimed the true reasons for her dismissal were connected to her health issues and her supervisor's personal dislike of her when she returned from maternity leave. Although the employer had already decided to terminate the plaintiff for performance issues, her doctor put Parent off work for medical reasons before the employer took any action. The employer then waited until Parent returned from her medical leave and terminated her employment.

The employer argued that the plaintiff's termination had been for just cause, alleging incompetence, the inability to carry out duties and substandard work, which had persisted after numerous warnings.

The New Brunswick Court of Queen's Bench found in favour of the employer, recognizing that the plaintiff had been notified of performance issues on a regular basis, had been advised of specific concerns and provided with suitable instruction to meet the required standards. Furthermore, the Court found she had been advised that failure to meet the standard could result in dismissal.

In Re MacKinnon and Inn on the Hill (1991) Inc., 2012 CarswellPEI 57, the complainant filed a complaint with the Prince Edward Island Human Rights Commission, alleging her employer had discriminated against her on the basis of sex or gender, specifically on the basis of her pregnancy. The complainant was a probationary employee, employed as an administrative assistant and had worked for the employer just under a month before she informed the employer that she was pregnant. 40 minutes after that conversation, the complainant was fired.

The employer alleged that it had already decided to terminate the employee the week before, stating she did not fit in or get along with the other employees. The employer acknowledged that it had failed to provide any type of feedback to the complainant before firing her and access to a copy of the complainant's job description was not available.

Although the complainant was terminated during her probationary period, the Human Rights Commission found that the employer had acted unreasonably in allowing less than a month for the complainant to prove herself without being forthcoming about actual expectations it had for her.

The Commission stated that it had no reason to doubt that there had been discussions about terminating the complainant prior to discovering her pregnancy but found the fact the employer did not give the complainant any information about what she could do to keep her job, and then terminated her employment 40 minutes after discovering her pregnancy, indicated that pregnancy was a factor in the employer's decision to let her go immediately. The employer was ordered to pay the complainant $15,206 in compensation for lost income, Employment Insurance benefits, and hurt and humiliation suffered by the complainant.

What this means for you

Terminating an employee at a time that coincides with a leave of absence can be difficult and employers should never terminate simply on the basis that an employee is, or will be, taking a leave of absence.

The key to the employer's successful defence in the Parent case centered on its thorough records of repeated attempts to communicate expectations to the employee and of its provision of the tools necessary for the employee to meet these requirements. The employer also acted prudently in ensuring that the employee was given written warnings that failure to improve and meet the required standards could result in her dismissal.

Likewise, the downfall for the employer in MacKinnon was the lack of communication between management and the employee regarding expectations and performance issues. Because the employer in Parent had a documented history of poor reviews and evaluations on record, it was able to rebut the negative connection that the employee attempted to draw between her medical leave and her termination. In MacKinnon, the Human Rights Commission acknowledged that there may have been discussions of termination prior to finding out the employee was pregnant, but that argument, without evidence of more, could not overcome the prima facie case of discrimination on the basis of her pregnancy.

Employers should always:

1. Communicate job expectations with employees and provide a job description for reference.
2. Document any performance issues and ensure they are communicated with employees (ensure such communication is also documented).
3. Provide employees with the training and information reasonably required to achieve the levels of performance required by the employer.
4. Ensure that employees receive written warning that failure to improve could result in termination.

If you follow these guidelines, you will be in a much better position to protect yourself from wrongful dismissal action or human rights complaint.