LaFleche v. NLFD Auto dba Prince George Ford (No. 2), 2022 BCHRT 88 (CanLII), <https://canlii.ca/t/jrm68>
In that case, the Human Rights Tribunal addressed a situation that may happen, where an employee goes on maternity leave and the employer likes the replacement better.
LaFleche started working at Prince George Ford in 2015 and was promoted to marketing manager in December 2016. In May 2018, she went on a maternity leave and gave birth to her child. While on maternity leave, Ford dismissed her from her marketing manager position. She complained that Ford dismissed her because it preferred the employee who covered the marketing manager position, while she was on leave. Ford never offered her another position. When she never returned to work at the end of her maternity leave in July 2019, and lost her career at Ford. She complained that Ford’s conduct is discrimination, based on sex and family status, contrary to s. 13 of the Human Rights Code [Code].
The Tribunal found that Ford removed LaFleche from the marketing manager position and constructively dismissed her from her employment. As a result of the discrimination, LaFleche was entitled to compensation for: injury to her dignity, feelings and self-respect, wage loss and maternity/parental benefits.
Much of the case turned on the discussions between LaFlecce and the employer at a meeting concerning her return to work. In the meeting, the employer did not tell her she was employment was terminated, and there was no discussion about changes to LaFleche’s pay, title or who would be reporting to whom. Accordingly, LaFleche reasonably understood from the meeting that Ford wanted to keep the replacement in the marketing manager position, did not have another position to offer LaFleche, and did not know what position she would return to. In was clear that her role would significantly change and that she had been constructively dismissed.
While Ford was entitled to make legitimate business decisions while LaFleche was on leave, it was not entitled to make changes that left LaFleche at a disadvantage, compared to other employees who were not on leave: Artuso at paras. 35-36. The Tribunal noted:
[63] In Bateman v. Prime Time Sports, 2012 BCHRT 230, the Tribunal explained that discrimination may be established where an employer terminates the complainant’s employment while on a Code-protected leave because it prefers their replacement. But for the leave, the employer would have no opportunity to prefer a replacement employee: paras. 70-80. While Mr. Wall had not worked with Ms. LaFleche, his successful working relationship with Ms. Callahan arose only because of Ms. LaFleche’s maternity leave. The only conclusion can be that Ms. LaFleche’s maternity leave was a factor in her removal from her role and in the constructive dismissal. Neither would have happened but for the Code-protected leave.
Ms. LaFleche seeks $60,000 in compensation for injury to her dignity. Ford says that the injury to dignity amount sought by Ms. LaFleche is disproportionate
The Tribunal found that LaFleche was entitled to wage loss and benefits of $66,625., and an award of $12,000 for injury to dignity.