ESC Consequences Of Breaching Job Protected Leave

By: Joel Fairbrother

Published: 10 July 2023

Employee Sued By Calgary Employer Law Services by Employment Lawyers in Alberta.

Tammy L.D. Nicholson Professional Corporation v Shoker, 2023 CanLii 52612 (AB ESA) (Johnson, Vice Chair) is an Alberta Employment Standards Appeal to the Alberta Labour Relations Board.  The decision from the employment standards director was varied, but the amount of compensation the employer owed the employee was not changed by very much.

This case is interesting because it provides guidance for Alberta employers and employment lawyers on the remedy available in employment standards where an employer breaches job-protected leave sections.


The following are the pertinent facts summarized by the Alberta Labour Relations Board:

  • The employee Gurpreet Shoker worked as a legal assistant for Tammy L.D. Nicholson Professional Corporation
  • Shoker had been on unpaid leave due to an illness
  • The employer terminated his employment while he was on leave, without notice and without just cause
  • The employee had been successful in getting the Director of Employment Standards to order compensation of $5,543.65, which was calculated to be the employee’s ordinary wages (i.e. as if she had been working) for the unused remainder of unpaid leave, minus any EI the employee received during that time. Reinstatement to work had not been ordered because the relationship was damaged
  • The employer appealed, arguing that, since the employee had been on unpaid leave, the amount the employee would have earned during that time if she was given notice was $0
  • The relevant sections of the Alberta Employment Standards Code are Sections 53.97, 53.971, 55, 56, 57, 82 and 89.

Analysis / Conclusion

Vice Chair William J Johnson went through some of the caselaw dealing with terminations of employment during unpaid, protected leave, and provided the following direction:

[32]        A harmonious reading of the ESC and the existing jurisprudence indicates:

  •       the obligation to provide notice of termination or pay in lieu (section 55(1)) co-exists with the obligation not to terminate an employee on protected leave (section 53.97(1));
  •       if an employee is terminated while on protected leave, it is presumed that the termination was contrary to the prohibition against termination of an employee while on protected leave, which presumption can be rebutted by the employer if the employer can show that termination was not caused in part or whole by the employee’s participation in a protected leave; and
  •       if the employer does not have just cause to terminate the employee, the compensation to be paid to the employee is based upon the ESC pay in lieu of notice provisions.

The ALRB concluded that the employee would have returned to work at the conclusion of her unpaid protected leave, and would have been entitled to wages.  On that basis, the ALRB ordered the employer to pay 4 weeks of termination pay, since that is what the employee would have been entitled to if the employer terminated her employment the day she returned to work.  That worked out to 4 weeks, or $5,231.16.

My Take

The employer had an interesting argument in this case, but it seems very obvious to me that it was doomed to fail.  If the employer’s argument were valid, there would be literally no point to a job protected leave.

To me, this case illustrates how little protection the Employment Standards Code provides to employees.  There are several options that would likely have been better.

In situations where the employee is on leave due to a disability, a likely better option for the employee would be a discrimination complaint under the Alberta Human Rights Act.  There, if it were concluded that the disability was a factor in the termination of employment, the remedy for the employee could potentially be much more substantial than it was in this case.  There are drawbacks to human rights complaints, including waiting a long time to get to a hearing, but the maximum potential is much higher there.

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