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Debra, Lawyer
Category: Canada Law
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Experience:  Lawyer
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I am currently on maternity leave and met with my employer

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I am currently on maternity leave and met with my employer yesterday with the understanding we would discuss the date I would return to work. He informed me that he is restructuring the company and my position would not be available when I return in September. I am Director of Sales & Marketing and currently he has a marketing consultant and an administrator performing my job. (the original mat leave replacement quit 6 weeks into her contract which is why he then hired 2 people) He told me that Revenue Manager's are more valuable to him and he has hired a new one at "a much larger salary than he's put out before" so there will be no room for me. He told me I'm one of the best Directors he's had and that he would provide me with a reference.

I have an email from him stating that our conversation yesterday was a "courtesy, I met with you yesterday to advise you that your position is being eliminated and will no longer exist in September 2013 when you are scheduled to return from your maternity leave. Although your employment will not be affected during your maternity leave, I am advising you that your employment will be terminated on September 01, 2013, after your maternity leave ends. At that time, you will be paid compensation in lieu of working notice in accordance with the terms of your employment contract and the B.C. Employment Standards Act.

To be clear, our discussion yesterday and this letter is in no way intended to terminate your employment, give you formal notice of your termination, start the running of any notice period or communicate a formal severance offer. As set out above, your employment will not be terminated until after your maternity leave ends."

I have been with the company from November 2009 - Current and my maternity leave started on September 1, 2012. My annual salary was $52,000 per year plus bonuses and benefits. What would I be entitled to under the "BC Employment Standards Act"? I am feeling like I need to start looking for employment right away but still have 2 months of maternity left and am not sure how to proceed....
Thank you for your question.

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This was an unlawful act.

The employer was required, by law, to keep your position or to provide you with a comparable position. Maternity leave is job-protected leave.

You can file a complaint with the Human Rights Commission or with your Employment Standards Branch.

But first, it may make more sense to consult with an employment lawyer face to face. The lawyer may be able to secure you significant damages by threatening a lawsuit.

You can contact the BC Branch of the Canadian Bar Association and use their Lawyer Referral Service. You will be given the name of a lawyer and can consult with the lawyer and the first half hour will be $25.

The number is:

604.687.3221 or 1.800.663.1919.

Let me know if you need any further clarification.
Customer: replied 4 years ago.

Thank you for your prompt reply. A major concern I have is that this employer may refuse to provide me with a letter of reference, or be a good reference for me, if I proceed with legal action. I work in a small town and he knows almost everyone in my industry. He has indicated that he will provide a letter of reference but emailed "it's best to wait until my maternity leave is over" but that I can list his phone number for now. This kind of makes me feel that if I pursue with legal action I may not have a good reference for my last 3 years of work.... If I do proceed with legal action is there a way to ensure he does not tell any future employers of a lawsuit or a way to get him to still be a reference for me?

You cannot really compel him to give you a good reference.

But you can have a lawyer threaten him with a lawsuit if he defames you.

As this is a small town why not see a lawyer in a neighbouring city and see what the lawyer thinks based on your facts.

But essentially this employer is clearly flaunting the law. So don't give up so easily.
Customer: replied 4 years ago.

I also have a Maternity leave of absence form stating my actual days away from work, actual return to work date, and comments that I would be returning to work under the same title and pay in my existing employment agreement. This was signed by myself and my employer on August 2, 2012. Does this help your argument that something's not right about this as I have this signed form from him?


Is this a Human Rights argument as well? Could he be discriminating as I'm woman? What specific type of lawyer should I use?

Yes it is a human rights argument.

It's descrimination without a doubt.

That is why I talke about complaining to the Human Rights Commission.

Yes the form helps. It reflects the law.

You should be consulting with an employment lawyer first. After that you may need to consult with a Human Rights lawyer.
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Thanks and take good care!

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