Act respecting labour standards Chapter IV - Larbour standards (Section 39.1 to 97)

Reinstatement of employee

At the end of the period of absence, the employer shall reinstate the employee in the employee’s former position with the same benefits, including the wages to which the employee would have been entitled had the employee remained at work. If the position held by the employee no longer exists when the employee returns to work, the employer shall recognize all the rights and privileges to which the employee would have been entitled if the employee had been at work at the time the position ceased to exist.

Dismissal, suspension, transfer

Nothing in the first paragraph shall prevent an employer from dismissing, suspending or transferring an employee if, in the circumstances, the consequences of the sickness, accident or criminal offence or the repetitive nature of the absences constitute good and sufficient cause.

2002, c. 80, s. 27; 2007, c. 36, s. 9.

Interpretation

In this case, the employer must reinstate the employee, with the same benefits, in his "former position". The former position, namely the position that the employee held at the time of his departure as well as the other related benefits are hence protected.

Upon returning to work, the employee must find the same conditions, in particular with respect to his position, his duties, his wages or his work, as if he had never been absent.

As a similar protection already existed for the employee who returns after a maternity leave, see the jurisprudence found under section 81.15.1 ALS regarding the employer’s obligations when the employee returns to work.

The position longer exists

In the case where the employee’s former position no longer exists when he returns to work, he must benefit, as if he had never been absent, from all the rights and privileges existing when his position disappeared.

Good and sufficient cause for dismissal

The consequences of the sickness, organ or tissue donation for transplant, accident or serious bodily injury suffered due to a criminal offence, as well as the repetitive nature of the absences, may be good and sufficient cause for dismissal, transfer or suspension. The employer who cites these consequences as a reason for dismissal, suspension or transfer has the burden of demonstrating that it is a good and sufficient cause.

The courts recognize that the employer has a duty to be reasonably accommodating within the context of such an absence.