Ex-Employer Sends Family into Financial Crisis

Why does this matter?

If this happened to Raina, it could happen to anyone. Alberta needs a precedent setting case to highlight the importance of Job Protected Leave. Collectively, we can bring attention to this case and see it through to Tribunal for a fair judgement.

We're all at risk.

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Welcome all! Here’s the short version:

We’re supporting Raina, a dedicated employee and first-time mother who was illegally terminated during a job-protected leave. Her ex-employer kept her maternity leave replacement in her job, ignoring employment standards. Despite taking legal action seeking reasonable severance (as her EI entitlement had been exhausted), the court ruled in favour of the ex-employer. Shockingly, the Judge then ordered Raina pay over 9k to the company.

She has been victimized by her ex-employer and re-victimized by our civil system.

This decision not only adds financial strain to an already challenging situation but also sets a concerning precedent for job protected leave rights. Let’s come together to help Raina cover the legal fees imposed by the court and the debt the ex-employer forced her to accrue while she searched for new employment.

Breakdown:

$9,318 – Ex-employer judgement award *Most critical! (Due by March 19th If not paid the company will file a Writ of Enforcement)

$11,800 – Credit debt due to termination

$1042 – Legal fees

Total: $22,160

Every contribution brings us closer to righting this wrong and sending the powerful message about the importance of protecting maternity leave rights. Your support means the world to Raina and her young family.

Thank you for your generosity and solidarity.

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Are you as stunned as we are? Have a lot of questions? Here’s the longer version:

In January 2021, Raina began a 1 year leave. To ensure the company would not be affected by her absence, Raina left her position in a state where anyone could have stepped into her role and succeeded. She completed major projects, which significantly reduced the workload of the position, and wrote step-by-step procedures for every aspect of her job. Further, she offered to assist her colleagues during leave, which they took full advantage of.

She had positive performance reviews, diligently worked through any issues that arose, and maintained a positive relationship with her boss (the HR Director) throughout her leave.

“Raina, your dedication to your team and your role is second to no other.” - Performance review, HR Director

“Raina is such a professional. Regardless of confronting difficult situations, she always shows up with a smile and positive attitude and people notice. Our customers are internal, and Raina treats them all with respect.” – Performance review, HR Director

“I love the email you put together for last night [sic]. It is awesome. Almost as awesome as you are ❤” – HR Director 3 days after Raina started Maternity leave via text

Ironically, a couple of months before taking leave, Raina had a discussion with her boss about her fear of losing her job. She was a career driven thirty-year-old and had heard horror stories from numerous colleagues of hers who lost their career when they took leave. The HR Director said it was illegal. When Raina explained she knew the ways around it, the HR Director assured her the only legal way would be job abolishment. “But,” the HR Director said, “the work is necessary for the operation of the business, so don’t worry.”

January 6, 2022, two weeks before she was due to return, the company terminated Raina without cause, and kept her replacement in her job. They offered her 2 weeks’ severance in exchange for signing an NDA. Don’t sue us. Don’t submit a human rights complaint.

“We've made the company decision to terminate your employment. We feel you are not a good fit. I think you'll agree with how things were when you left that it wasn't going well. I don't think you were happy here.” – HR Director Termination phonecall

“Without Cause” termination, what’s that?

An employer has the right to terminate an employee’s employment without cause at any time for any legal reason. All the employer must do is provide the employee with reasonable notice of dismissal, or pay in lieu of notice of dismissal.

A call to Employment Insurance informed Raina she had exhausted her EI entitlement due to taking her leave, and that is why maternity and parental job protections exist.

What job protections?

Employment Standards Code

Division 7

Maternity Leave and Parental Leave

7. Where an employee is entitled to resume work under this section, the employer must:

a. reinstate the employee in the position occupied when maternity or parental leave started, or

b. provide the employee with alternative work of a comparable nature

Only exception: suspension of operations; whole or in part.

She phoned Employment Standards. They said Raina was supposed to be returned to her position following parental leave. Agreed strongly she needed to file a complaint. When Raina explained her ex-employer told her, "I don't think you're happy here" and "not a good fit" Employment Standards said, “That's irrelevant.” Then asked if the business had dissolved.

It hadn’t.

She phoned the Alberta Human Rights Commission. They were appalled by the situation. Confirmed the termination was illegal and she should submit a Human Rights Complaint. However, said it could take years and could be a “difficult thing to do because the employer gets to defend themselves and present their side which you would get to read.”

You may be asking... But what could they possibly say when the termination was without cause, she had positive performance reviews and her boss texted her an appreciative message when she was already on leave?

“...demonstrating a poor attitude and lack of professional composure at work...” – HR Director to the Human Rights Commission following termination

Whatever they want.

The low severance (without recourse to continue EI) and the years it would take for the Human Rights Commission to review her case made her search for legal help. She found a high-end employment law firm that took her case on contingency. They sought 5 months’ severance, overtime pay, and general damages. Alongside that, filed a human rights complaint.

Once the human rights complaint was accepted the company offered a settlement (this would settle both her civil claim and make her withdraw her human rights complaint). However, after contingency and tax deductions, the settlement would have only covered approx. half the debt she had accumulated while securing new employment. Because of that, Raina stood firm only 4k higher, at an amount that would have almost paid off her debt. Her lawyer counselled her there was a 2% chance of going to court.

It went to court.

On the stand, the HR Director admitted Raina’s job existed, and they kept the maternity leave replacement. The employer did not suspend any part of the business. This is a direct violation of the Employment Standards Code.

However, to get around the law of terminating during maternity leave, the HR Director explained Raina was given “notice of” termination during maternity leave (her ROE has the date she gave to return). Sound gross? Unfortunately, that is perfectly legal!

Even though she was told it was “Without Cause,” on the stand, the HR Director explained Raina’s replacement was more “efficient” and could accomplish double one of her duties. This is a fallacy of logic—Raina had completed several major projects and implemented an efficient system to make that possible. Raina was not given the opportunity to experience her job as she left it. She worked late to her last day to finish the company’s policies (one of the above major projects was to rewrite all 37 of their policies).

“Thank you so much for getting these policies across the line before you left. Ok [sic] appreciate all the hard work and dedication you put into them. ❤” – HR Director the evening Raina started Maternity leave via text

Judgement came January 25, 2024. The Judge upheld the company’s old termination policy which outlined two weeks’ pay in lieu of notice, ruled as not a Bad Faith termination because giving Raina notice was “kind,” and dismissed her overtime claim.

“As a result, I’m unable to conclude their conduct was unfair, in bad faith, untruthful, misleading or unduly insensitive.” – Judge Glass

Her lawyer, after consulting with his colleagues, advised her to appeal the decision “if money was no object, ” because based on precedence, the ruling was contradictory. However, he could not defend her on contingency. She would also have to pay for her transcripts at an estimated cost of $2700. This wasn’t an option.

Because she lost, February 20, 2024, the Judge awarded double legal fees and ruled she pay the company $9,318.06.

Her human rights complaint is still active, with Conciliation booked for May 26, 2024. There is a possibility the company will offer a settlement. If Raina is counselled to accept, she would need to sign an NDA.

In BC there was a recent phenomenal tribunal ruling: Employer keeps mat leave replacement

Unfortunately, Alberta’s HRC has historically awarded much less. Alberta Human Rights Damage Awards “The court concluded that low damage awards could actually perpetuate discriminatory conduct.”

Sure, it’s getting better, but how much of a deterrent is 10-15k to companies that make millions a year?

We need stronger penalties for employers breaking the Code. We need to separate maternity leave EI from the general bank.

Awareness is always important when we want to create change.