BEING PUNISHED FOR MATERNITY LEAVES NOT LEGAL
QUESTION: While my employment contract states that I am to be paid salary, last week I was told that I was being switched to hourly pay. As a result any time I miss from work will be docked from my pay. Recently, my employer indicated to me that by having three children in the five and a half years of my employment, I am taking advantage of the company's good will. Ironically, I only took twelve weeks off work for each child. I have been told that while it is one thing to burden my life by having my children so close together, I was also creating a burden for the company. Last week I took a day off work to take my baby to the hospital and immediately after I was changed from salary to hourly. Can they do this?
ANSWER: Only if you let them. It may be time to drag them kicking and screaming out of the Stone Age. You can file a complaint within the next six months under the Employment Standards Act or the Ontario Human Rights Code.
The Ontario Employment Standards Act prohibits any employer from taking any reprisal action against an employee because they took a maternity or parental leave. If you file a complaint, an Employment Standards Act officer will investigate fairly quickly. If that officer determines that the switch from salary to hourly was in fact related to the maternity leaves you have taken, the officer can order the employer to return you to salary. While the employer could appeal that decision to an adjudicator in Toronto, the appeal process is not easy.
The Employment Standards Act also states that employers with fifty employees or more cannot discipline or take reprisal against an employee who takes up to ten emergency days per year. "Emergency Leave", as this is called, includes the illness of an employee's child. If your employer has fifty employees or more, you can also file a complaint under this section.
If you are going to pursue the Employment Standards Act route, I would recommend that you file a complaint under both sections. It is not clear from your question whether you were changed to hourly as a result of having taken the leaves in the first place, or having taken a day off to care for your sick child.
Another option is the Ontario Human Rights Code. The Code prohibits discrimination against any employee based on their gender or family status. It has been determined under the Code that since only women can take maternity leaves, any reprisal action against a woman as a result of taking that leave is discrimination on the basis of gender.
You should also file a complaint alleging discrimination on the basis of family status. A requisite element being in a family is taking care of family members. If you can show that you are being punished for taking a day off for your child, you will likely be able to establish discrimination on the basis of family status.
If you want immediate results I would strongly recommend you pursue an Employment Standards Act complaint. While it is technically possible to file a complaint under both pieces of legislation, by the time the Human Rights Commission gets around to dealing with your concerns the Ministry of Labour, under the Employment Standards Act, will already of dealt with the issue.
A Ministry of Labour Officer will likely be out to investigate within four weeks of the date your complaint is filed. It will be two to three years before the Human Rights Commission will actually make any order or decision in your case. One thing to remember is that the Human Rights Commission tends to award a bit more damages against your employer for your general pain and suffering as a result the violation of your rights than does the Ministry of Labour. Unlike American television, in neither case will this be a large amount of money. The Ministry of Labour usually awards only up to $2,500.00. The Human Rights Commission would usually award from $1,000 to $5,000 in a situation like yours.
The big question, of course, is whether you want to file a complaint against your existing employer. Although you are in the right, you may win the battle and lose the war. It is your work place and you have to work in it every day.
I would suggest that before filing any complaints you attempt to speak to your employer calmly about the fact that you believe your rights under the Employment Standards Act and the Human Rights Code have been violated and you would like them to reverse the decision. Do not make any threats about filing complaints at this stage. I give the same advice to employers that I do to employees when it comes to conflict in the work place: Only escalate the conflict when you absolutely have to. Start with honey and only when you feel you have no other choice should you move to vinegar.
As published in The Hamilton Spectator, February 3, 2003