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Debra, Lawyer
Category: Canada Law
Satisfied Customers: 101435
Experience:  Lawyer
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I was off before returning from maternity leave in Alberta. Well

Customer Question

I was laid off before returning from maternity leave in Alberta.
Well I was on leave, the company sold off the division I worked for.
I have been told there is no suitable position for my qualifications, and the shop I previous work in, is closing.
With mat leave , I was employed for 2 years with the company. They are offering a package for one month. As I will have no insurable hours for EI that package is imperative well I find another position, and hope that childcare will still be in place.
Any help would be appreciated.
Submitted: 2 years ago.
Category: Canada Law
Expert:  Debra replied 2 years ago.
Are they telling you the truth about there not being any possibility of a job?
Customer: replied 2 years ago.
They did not try to hard. HR told me the shop moved and position was filled well I was on maternity leave. I was only sent a list of positions currently available.
Expert:  Debra replied 2 years ago.
Essentially the law is that your leave was job protected so the employer was required to keep your position or a comparable position open for you if possible. So the employer cannot give your job away but if the shop is really closing or moving then that is a different story. You can even be dismissed on mat leave if the reason for the dismissal has nothing to do with your leave for example. In this case it sounds like you are saying they could have kept a position for you but decided not to do so. That would be unlawful and discriminatory. You could file a complaint either with the Employment Standards Branch or with the Human Rights Commission. If you are being dismissed and this is legitimate then you are entitled to receive reasonable notice Courts look at several factors including the length of time you worked for the employer, your age, your position, the likelihood of finding new employment etc. At the high end, if you were in a managerial position, the Court would likely order one month's notice or pay in lieu of notice for each year of employment. If you were not in a managerial position the Court would order somewhat less. Given these factors I suggest that your next steps should be to either call the Human Rights Commission and the Employment Standards Branch and/or consult with an employment lawyer face to face.
Customer: replied 2 years ago.
Is there any legislation, as far as which employer I would be with? My former employer or the new company?
I have spoken with employee standards and they indicated I could have a case, however it says to negotiate with the employer first, I don't know what to do past asking for a suitable position, and how to state for more then the amount offered for severance.
Expert:  Debra replied 2 years ago.
It is your former employer that owes you this duty in most cases but it is quite complex. What you can do, either verbally or in writing, is state that your leave was a job protected leave and that you're not prepared to simply take what they're offering you and simply walk away. You can say that your first choice would be to be provided suitable position as this is your right but if they are not prepared to do that then you will demand that they provide you with considerably more termination pay by way of damages and then you can suggest what you want and states that if they do not agree will have no choice but to retain an employment lawyer and sue them.
Customer: replied 2 years ago.
What would be an acceptable amount considering? I was NOT in a managerial role. I have already addressed orally that the shop is still opened, and that I could probably make more money returning to work for period it was still open, but it is obviously no longer operated by them.
Expert:  Debra replied 2 years ago.
Two months would be high in most cases because you are not in management but because of the maternity leave issue I would think you should get at least two months if not three.
Customer: replied 2 years ago.
There is also a clause on my severance . Which reads as follows 'I acknowledge that this release applies to all claims I have or may have including any claims under the Alberta Standards code and the Alberta Human Rights Act' If I do renegotiate, do I close the door for my rights?
Customer: replied 2 years ago.
Are there any similar case studies on this particular issue in Alberta. I truly feel this is a human rights issue, had I been at work, instead of staying at home. I could quite possibly still have a position with the new company.
Expert:  Debra replied 2 years ago.
It is a case of discrimination in my view as well. I cannot do legal research unfortunately but I think you should call the Human Rights Commission tomorrow and run your facts by them.