Sexual discrimination Archive

Refusal to reinstate employee after maternity leave leads to constructive dismissal and damages for discrimination

Kelly Bray was a Massage Therapy Instructor for the Canadian College of Massage and Hydrotherapy. She was employed for nine years. In her position, Ms. Bray taught classes, supervised clinics and supervised outreach programs.

In October, 2012, Ms. Bray went on maternity leave.

The college has three teaching terms, starting in January, May and September of each year. Ms. Bray was expected to return to work in October, 2013, one month into the September term. As the college went about preparing the September term schedule, it neglected to include Ms. Bray in its planning. When Ms. Bray contacted the college to discuss her return to work, she discovered that she would not be returned to her previous position. When she questioned this, she was told that working and “having to be a mother at the same time…will be a big adjustment.”

Ms. Bray filed a complaint with the Ministry of Labour in July 2013.  When she returned to work in October 2013, she found that her schedule had been reduced from 25 hours per week to 19 hours per week, and that she had not been reinstated to her former position. Ms. Bray testified that the work atmosphere on her return was “very strange” and “odd” and that she felt like she never fit back in. Then, in December 2013, the college told her that she would not be scheduled to work at all during the January term. When she asked why she had been removed from the schedule, she was told that they simply did not require her services for that term and that she would be considered for the May term.

Ms. Bray sued for constructive dismissal, and alleged that she been was discriminated against on the basis of her status as a new mother, and that her termination was a reprisal for filing a complaint with the Ministry of Labour.  The court agreed.

The court noted that it is well established that an employer has no inherent right to lay off an employee, even temporarily.  While such a right can be created by the terms of an employment contract, such was not the case here.  The court found that by removing her from the schedule, the college constructively dismissed Ms. Bray.  As she was not working and she was not being paid, there had been a fundamental change to the terms of her employment.

In the end, the court found that Ms. Bray was entitled to reasonable notice of termination, and awarded her pay in lieu of notice equal to 8 months.  The court also found that she had been discriminated against on the basis of her sex and family status, and the college was ordered to pay her an additional $20,000.00 as damages.