Worker intended to return full-time, but she needed more time to find childcare due to pandemic
An employer did not have just cause to dismiss a worker who asked to return from parental leave on a temporary part-time basis until she found full-time childcare, the Nova Scotia Labour Board has ruled.
Trans World Distributing is a family-owned industrial fastener supply company based in Dartmouth, NS. The business involves the manufacturing, storage, sales, and shipping of industrial fasteners supported by office staff.
The worker was an administrative assistant to the company president, hired in 2010. Over time, she took on other responsibilities such as office management and accounting. Her mother also worked at Trans World for several years before she joined the company.
The president and his wife – who also held a top role with Trans World – valued the worker’s contributions and abilities and entrusted her with running the office on her own when they travelled to Florida every year.
In April 2020, the worker and Trans World’s president wrote up a written maternity and parental leave agreement. The agreement established that the worker would take a 56-week leave, during which her benefits would continue and the company would pay her a top-up of $200 weekly. The agreement allowed the worker to get her income topped up during the leave and Trans World benefitted from her taking a shorter leave than the 76 weeks to which she was legally entitled.
Childcare challenge due to pandemic
On April 23, 2021, the worker came to the office to speak with the president about the upcoming end of her leave. She told him that the daycare she had previously set up for her child was no longer available because it had reduced its capacity due to the COVID-19 pandemic. She said she still intended to return to work full-time as soon as possible, but she needed to explore alternatives such has having family members look after her child. She had already secured care three days per week in the summer and a friend who was on parental leave would watch the child full-time in the fall.
However, the president interpreted this to mean that the worker was only coming back to work for three days per week, although he had understood that she had agreed to return full-time and she had daycare lined up. He said the news hit him “like a bomb.”
A couple of weeks later, on May 6, Trans World sent the worker a letter outlining the terms of her return to work, including her hourly rate, a start date of June 14 and hours of work being 8 a.m. to 5 p.m. Monday to Friday – a change from her pre-leave hours of 7:30 a.m. to 4 p.m., a reduction of 2.5 hours per week. It also said that some of her responsibilities had changed, including that her accounting duties would be “under the attention” of the new controller who oversaw a new computerized accounting system.
The worker was offended by the letter because it didn’t mention the April 23 meeting or the agreement that she believed she had reached with the president. She was concerned about the reduction in her hours and that she was now reporting to someone else.
She called the president and he asked her to advise him in writing on the status of her daycare search by May 19. She continued to update him via text message over the next few weeks, but she was unable to find full-time daycare.
Worker sought clarification of terms of employment
Trans World sent the worker a second letter on May 20 reminding her that her top-up would be ending on May 28 and she was expected back after that. The worker responded with an email on May 25, outlining the April 23 discussion and her difficulties with finding full-time daycare.
The worker asked Trans World to help her by allowing her to return on a part-time basis for June and July, after which she would be able to work full-time. She said that the company had initially agreed to this but then communicated something different. She emphasized that she had always intended to return full-time but was concerned that the terms and conditions of employment were changing. She asked for clarification by May 28 so she could make “an informed decision about your most recent proposal.”
The president felt that the worker’s reply was demanding to the point of constituting misconduct. He believed that the earlier communications did not involve a proposal and were meant to give her direction on what her job would look like when she returned from leave.
The company sent the worker a letter terminating her employment effective June 14 with eight weeks’ pay in lieu of notice, indicating that it couldn’t accommodate her change to three days per week, as the position that had been held open for her was a full-time one.
The worker was hurt and felt panicked because she was a single mother coming off parental leave, but she found a new job one week later. She secured full-time childcare starting July 5.
Claim for termination pay, discrimination
The worker filed a claim for pay in lieu of notice of termination under the provincial Labour Standards Code and the director of labour standards granted it along with an additional order for compensation associated with discrimination action because Trans World had fired her for taking a parental leave.
Trans World appealed to the Nova Scotia Labour Board, arguing that the worker had resigned or, alternatively, her termination was for just cause because of wilful misconduct, disobedience, or neglect of duty.
The board found that the worker always intended to return to work full-time and the evidence supported her claim that she was having difficulty finding full-time childcare due to the pandemic. The fact that she found it three weeks after her termination and she worked full-time in her new employment supported that assertion, said the board.
The board also found that the worker’s response to the May 20 letter and request to return part-time on a temporary basis was “within the range of choices that a reasonable employee would make in comparable circumstances” in order to clarify the changes in the terms and conditions of employment that Trans World had outlined, particularly given the worker’s confusion over the difference between the April 23 meeting and subsequent communications.
No resignation
The board determined that Trans World did not demonstrate that the worker resigned. She told the company that she intended to return full-time after her leave and the evidence supported the fact that she faced unexpected temporary childcare challenges.
There was no opportunity for [the worker] to behave in a way that was consistent with resigning as by the time her leave ended, her position had already been terminated by Trans World,” said the board.
The board also found that the worker’s May 25 email was not a deliberate or intentional act of misconduct, disobedience, or neglect of duty that would disentitle her to notice of termination or pay in lieu. It was “neither demanding nor insolent, but a genuine respectful effort” to resolve the worker’s concerns, said the board in finding there was no cause for dismissal.
In addition, the code stipulates that an employer that terminates an employee with or without cause within three months following a protected leave has committed a discriminatory act, said the board.
Trans World was ordered to pay the worker eight months’ pay in lieu of notice plus an addition two weeks’ pay for the discriminatory dismissal, minus the worker’s earnings in her new job.
See Trans World Distributing Ltd. and Elliot, Re, 2022 NSLB 98.
