HomeMy WebLinkAboutUnion 96-11-25 IN THE MATFER OF AN ARBITRATION
BETWEEN:
FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY
(the "College")
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 110
(the "Union")
UNION POLICY GRIEVANCE RE SENIORITY DATES
(#95A674)
BOARD OF
ARBITRATION: Michel G. Picher - Chairperson
John McManus - Union Nominee
Hugh John CoOk - College Nominee
APPEARING FOR
THE UNION: Stephen Goudge - Counsel
Paddy Musson - Local President
Tom Geldard - Vice-President
Garry Fordyce - Chief Steward
APPEARING FOR
THE COLLEGE: Robert J. Atkinson - Counsel
Gall Rozell - Senior Human Resources
Consultant
A hearing in this matter was held in London on December 19, 1995. Final written
submissions were received on February 12, 1996.
AWARD
This grievance is a policy grievance filed on behalf of some 18 employees of the
College. The grievance reads, in part, as follows:
Local 110 grieves that the seniority dates for [18 named grievors] are
inaccurate because the College stopped the accumulation of seniority. While
this is called for under the Collective Agreement, it violates the Ontario
Human Rights Code in that all of these individuals are disabled as def'med
under the Ontario Human Rights Code, Section 10(1). Because they are
disabled, the College cannot treat them in a discriminatory manner. To limit
their seniority is discrimination, therefore the employer cannot stop the
accumulation of seniority.
As remedy, we seek correction of the seniority list and a re-posting of the
lists.
FACTS AND ISSUES
The facts giving rise to the grievance are not in dispute. The 18 named grievors have
all been absent from work in excess of 24 months, save one, who has retired after a period
of long-term disability leave which exceeded 24 months. In keeping with the provisions of
the collective agreement, the College has stopped the accrual of seniority for the employees
in question, after the expiry of 24 months of long-term disability leave. While the Union
does not dispute that the action of the College is in keeping with the terms of the collective
agreement, it now asserts that those provisions constitute discrimination against a class of
employees by virtue of their physical disability, contrary to the Ontario Human Rights Code,
R.S.O. 1990. It therefore seeks a determination from this Board, by way of declaration and
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direction to the College, that its actions are not supportable under the terms of the
collective agreement, to the extent that the provision in question is unlawful.
The following provisions of the collective agreement are pertinent to the resolution
of this dispute:
Article 4
NO DISCRIMINATION
4.01 A The parties agree that, in accordance with the
provisions of the Ontario Human Rights Code,
there shall be no discrimination or harassment
against any employee by the Union or the
Colleges, by reason of race, ancestry, place of
origin, colour, ethnic origin, citizenship, creed,
sex, sexual orientation, age, record of offences,
marital status, family status or handicap.
27.03 D A full-time employee shall continue to
accumulate seniority for the purpose of this
Article while:
(ii) absent through verified illness or
injury and/or leave of absence for
up to 24 months;
A long-term disability plan is provided under Article 18 of the collective agreement.
An employee who is absent due to illness or injury is entitled to long-term disability benefits
after a qualifying period of 130 days or six months. Benefits continue for two years, so long
as the employee cannot do his or her regular job. After that time, benefits are payable only
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if the employee is unable to do any occupation for which he or she is reasonably qualified.
In that circumstance, the benefit continues until the point of retirement, or the age of 65.
It does not appear disputed that the provisions of Article 27.03 D(ii) have been
contained in the collective agreement since 1989. Moreover, although it appears that the
employer has allowed employees who are absent on other forms of leave to accumulate
seniority during such leave, such as professional development leaves in accordance with
Article 20 of the collective agreement, and exchange program leaves, it does not appear
disputed that the College has consistently cut off the accumulation of seniority for
employees on any form of leave beyond the period of 24 months. The issue is, therefore,
fairly straightforward. Are the actions of the College, in ceasing to allow the accumulation
of seniority for persons who are on long-term disability leaves beyond the period of 24
months, in accordance with Article 27.03 D of the collective agreement, in violation of the
Ontario Human Rights Code? Or, to put'the matter differently, is Article 27.03 D (ii) of the
collective agreement unenforceable as being contrary to the Ontario Human Rights Code?
ARGUMENTS
The argument being put forth by counsel for the Union is relatively simple. He notes,
firstly, that the discrimination provisions of the collective agreement incorporate the terms
of the Ontario Human Rights Code. That, he submits, includes a prohibition against
discrimination on the basis of physical disability, as provided for in the Code. Counsel
submits that the employer's practice of discontinuing the accumulation of seniority after an
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absence of 24 months on disability leave constitutes discrimination against a protected class
employees - those who are disabled. He notes that the employees who are the subject of
this grievance continue, like other employees, to maintain their status of full-time employees.
However, they are treated differently, he argues, by reason of their physical disability. That,
he submits, constitutes unequal treatment of the employees in question, constituting
discrimination based on their physical disability.
In support of his arguments, counsel refers the Board of Arbitration, in part, to the
following provisions of the Ontario Human Rights Code:
5. (1) Every person has a fight to equal treatment with
'respect to employment without discrimination
because of race, ancestry, place of origin, colour,
ethnic origin, citizenship, creed, sex, sexual
orientation, age, record of offences, marital
status, family status or handicap.
10. (1) In Part I and in this Part,
'"oecause of handicap" means for the reason that
the person has or has had, or is believed to have
or have had,
(a) any degree of physical disability,
infirmity, malformation or
disfigurement that is caused by
bodily injury, birth defect or illness
and, without limiting the generality
of the foregoing, including diabetes
mellitus, epilepsy, any degree of
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paralysis, amputation, lack of
physical coordination, blindness or
visual impediment, deafness or
heating impediment, muteness or
speech impediment, or physical
reliance on a guide dog or on a
wheelchair or other remedial
appliance or device.
(b) a condition of mental retardation
or impairment.
(c) a learning disability, or a
dysfunction in one or more of the
processes involved in undertaking
or using symbols or spoken
language.
(d) a mental disorder, or
(e) an injury or disability for which
benefits were claimed or received
under the Workers' Compensation
Act;
In support of the Union's position, counsel refers the Board to the following two
arbitral awards: Re Riverdale Hospital (Board of Governors) and Canadian Union of Public
Employees, Local 79 (1993), 39 L.A.C. (4th) 63 (Stewart); and Re Metropolitan Toronto
Reference Library Board and Canadian Union of Public Employees, Local 1582 (1995), 46
L/LC. (4th) 155 (Burkett).
In the Riverdale Hospital case, the majority of the board of arbitration concluded
that the hospital's policy of readjusting the seniority date of an employee who is absent on
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Workers' Compensation did constitute inequality of treatment contrary to the Ontario
Human Rights Code. The board so found, notwithstanding that the collective agreement
expressly provided that seniority was not to accrue during an unpaid leave of absence, with
the exception of maternity leave. In coming to its conclusion, the majority of the board
confirmed that it had the jurisdiction to interpret and apply the provisions of the Ontario
Human Rights Code, citing Section 45 (8) of the Labour Relations Act which then provided
as follows:
45(8) An arbitrator or arbitration board shall make a final and
conclusive settlement of the differences between the parties
and, for that purpose, has the following powers:
3. To interpret and apply the requirements of
human rights and other employment-related
statutes, despite any conflict between those
requirements and the terms of the collective
agreement.
It may be noted that, with changes in wording not here material, the foregoing provision has
continued in effect, notwithstanding recent amendments of the Labour Relations Act, as now
contained in section 48(12), S.O. 1995, c. 1. Sch. A. The continuation of the above provision
in the Act is a reflection of Canadian labour law policy favouring the resolution of
employment-related disputes of various kinds within a single forum, for the benefit of
employers, employees and unions alike. In Riverdale Hospital, upon an analysis of prior
jurisprudence and having regard to the treatment of the work-injured employees as
compared to the comparator group all other employees, the majority concluded that the
provisions of the collective agreement which precluded the accrual of seniority during a
period of absence due to a Workers' Compensation injury were in violation of Section 5 of
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the Human Rights Code and, therefore, allowed the grievance. The board directed the
readjustment of the grievor's seniority date and his vacation entitlement accordingly.
In the Metropolitan Toronto Reference Library Board case, the majority of the board
was called upon to consider the claim of an employee who was absent for an extended
period by reason of suffering chronic fatigue syndrome, as a result of which he was absent
during a critical period of computer training. Upon his return to work, because he had
missed the training, he was downgraded both in his position and in his resulting salary.
Subsequently, he was also denied access to two vacant positions, by virtue of his lack of
qualification by reason of his having missed the computer training. On behalf of the
employee, the union grieved that the Library Board had discriminated against the employee
by failing to provide him with training upon his return to work, so that he was disadvantaged
as compared with the comparator group of other employees who did not suffer an absence
at the critical time by reason of any physical disability.
Counsel for the Union submits that the merits of this case fall within the principles
reviewed in the Library Board case. Very simply, he argues, but for their physical disability
the employees on whose behalf the grievance is brought would not have suffered a reduction
in the accumulation of their seniority, as compared with employees who are not absent. The
difference, he submits, is based solely on the physical illness of the employees which is at
the root of the employees' periods of absence. In the result, counsel submits, there has been
a violation of the provisions of the Human Rights Code with respect to these employees.
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Counsel for the College submits that there has been no violation of the prohibition
against discrimination on the basis of handicap or disability, contrary to the Ontario Human
Rights Code, by virtue of the operation of Article 27.03(D)(ii) of the collective agreement.
He submits that Article 27 deals, in a general way, with the accumulation of seniority and
makes an exception for the circumstance of all employees who are not at work. More
specifically, counsel asserts, the only distinction made within the provisions of Article
27.03(D) is between employees who are actively at work on the one hand and, on the other
hand, employees who are not at work, for whatever reason. He concedes that the argument
of the Union might succeed if it could be shown that the provision in question made some
invidious distinction which singles out or adversely impacts the disabled employee in a
manner that does not touch the non-disabled. That, he submits, is simply not the case, as
the provision makes no such distinctions. He submits that no disabled employee is more
negatively impacted than any non-disabled employee who, for whatever reason, is not
actively at work for a period in excess of 24 months.
Counsel for the Hospital notes that if the position of the Union should prevail it
would, in effect, create a form of super-seniority for the physically disabled. By. way of
example, he compares the treatment of a laid-off employee, who could not accumulate
seniority while a disabled employee, who might not be caught by a layoff by virtue of his or
her absence from work, could continue to accumulate seniority indefinit61y. He stresses that
the parties should not be taken to have intended that the disabled employee should, by
virtue of the interpretation of Article 27.03(D)(ii) advanced by the Union, be in a better
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position than employees on other forms of leave who might fall under the terms of the
Article.
Counsel stresses that not all forms of distinction or discrimination are such as to
attract legal sanctions. It is, he submits, only those invidious distinctions based on personal
characteristics prohibited by the Human Rights Code, resulting in a real difference in
treatment, which constitute prohibited discrimination. In this regard, he directs the Board
to the decision of the Supreme Court of Canada in Law Society of British Columbia v
Andrews (1989), 56 D.L.R. (4th) 1. In that case, the Court held that a provision of the
Barristers and Solicitors Act, R.S.B.C. 1979 c.26 s.42, which established Canadian citizenship
as a requirement to enter the legal profession, was in violation of equality rights protected
by Section 15(1) of the Canadian Charter of Rights and Freedoms. Counsel for the Hospital
points to the following passage in the dissenting decision of McIntyre, J. at pp16-18:
What does discrimination mean? 'The question has arisen most commonly in
a consideration of the Human Rights Acts and the general concept of
discrimination under those enactments has been fairly well settled. There is
little difficulty, drawing upon the cases in this court, in isolating an acceptable
definition. In Re Ontario Human Rights Com'n and Simpsons-Sears Ltd.
(1985), 23 D.L.R. (4th) 321 at p. 332, [1985] 2 S.C.R. 536 at p. 551, 9 C.C.E.L.
185, discrimination (in that case adverse effect discrimination) was described
in these terms:
It arises where an employer ... adopts a rule or standard ...
which has a discriminatory effect upon a prohibited ground on
one employee or group of employees in that it imposes, because
of some special characteristic of the employee or group,
obligations, penalties, or restrictive conditions not imposed on
other members of the work force.
It was held in that case, as well, that no intent was required as an element of
discrimination, for it is in essence the impact of the discriminatory act or
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provision upon the person affected which is decisive in considering any
complaint. At p. 329 D.L.R., p. 547 S.C.R., this proposition was expressed in
these terms:
The Code aims at the removal of discrimination. This is to state
the obvious. Its main approach, however, is not to punish the
discriminator, but rather to provide relief for the victims of
discrimination. It is the result or the effect of the action
complained of which is significant. It if does, in fact, cause
discrimination; if its effect is to impose on one person or group
of persons obligations, penalties, or restrictive conditions not
imposed on other members of the community, it is
discriminatory.
In Action Travail des Femmes v. C.N.R. Co. (1987), 40 D.L.R. (4th) 193,
[1987] 1 S.C.R. 1114 sub nom. C.N.R. Co. v. Can. (Canadian Human Rights
Com'n), 87 C.L.L.C. 17,002, better known as the Action Travail des Femmes
case, where it was alleged that the Canadian National Railway was guilty of
discriminatory hiring and promotion practices contrary to s.10 of the
Canadian Human Rights Act, S.C. 1976-77, c. 33, in denying employment to
women in certain unskilled positions, Dickson C.J.C., in giving the judgement
of the court, said at pp. 209-10 D.L.R., pp. 1138-9 S.C.R.:
A thorough study of "systemic discrimination" in Canada is to
be found in the Abella Report on equality in employment. The
terms of reference of the Royal Commission instructed it "to
inquire into the most efficient, effective and equitable means of
promoting employment opportunities, eliminating systemic
discrimination and assisting individuals to compete for
employment opportunities on an equal basis." (Order in
Council, P.C. 1983-1924, June 24, 1983). Although Judge Abella
chose not to offer a precise definition of systemic
discrimination, the essentials may be gleaned from the following
comments, found at p.2 of the Abella Report.
"Discrimination ... means practices or attitudes
that have, whether by design or impact, the effect
of limiting an individual's or a group's right to the
opportunities generally available because of
attributed rather than actual characteristics.
"It is not a question of whether this
discrimination is motivated by an intentional
desire to obstruct someone's potential, or whether
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it is the acddental by-product of innocently
motivated practices or systems. If the barrier is
affecting certain groups in a disproportionately
negative way, it is a signal that the practices that
lead to this adverse impact may be
discriminatory."
There are many other statements which have aimed at a short definition of
the term discrimination. In general, they are in accord with the statements
referred to above. I would say then that discrimination may be described as
a distinction, whether intentional or not but based on grounds relating to
personal characteristics of the individual or group, which has the effect of
imposing burdens, obligations, or disadvantages on such individual or group
not imposed upon others, or which withholds or limits access to opportunities,
benefits, and advantages available to other members of society. Distinctions
based on personal characteristics attributed to an individual solely on the basis
of association with a group will rarely escape the charge of discrimination,
while those based on an individual's merits and capacities will rarely be so
classed.
Counsel for the Hospital stresses the standard set out in the final paragraph above
quoted, arguing that in the case at hand the impugned provision of the collective agreement
does not impose disadvantages upon the physically disabled employees which are not in fact
imposed upon all classes of employees who are absent from work for a period in excess of
24 months. There is, he submits, in this circumstance neither any direct discrimination nor
any systemic or adverse effect discrimination visited upon the disabled employee.
Counsel also argues that the sophistication of the parties and of their collective
agreement should be taken into account before lightly striking down Article 27.03(D)(ii) as
being contrary to the Human Right Code. He notes that the collective agreement, which
specifically addresses the issue of discrimination, is negotiated to apply to a large number
of community colleges, on a province-wide basis. By the incorporation of the Ontario
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Human Rights Code into the provisions of the agreement by the language of Article 4.01(a),
counsel argues the parties have displayed a recognition of the need to respect the rights of
the individual, and through Article 27.03(D) have reflected the business and employment
law sense that the application of a general standard to all employees who are absent beyond
24 months is not discriminatory, given that it is exhaustive and fashioned so as to treat all
employees, regardless of their particular circumstance, in the same way.
Counsel further notes that the collective agreement reflects consistency in the
treatment of employees who, because of their absence from work, are not deemed to have
accumulated seniority. In this regard, he makes reference to Article 22.01(F) which deals
with parental leave, providing that employees cannot accumulate seniority during such
leaves. He also notes that an employee who, for example, was absent for service on jury duty
would likewise be caught by the provisions of Article 27.03(D)(ii).
From a purposive standpoint, counsel submits that the collective agreement reflects
the understanding of the parties that seniority is, as a general rule, a right which accrues
based on active service. Onto that general rule, the parties have engrafted certain spedfic
exceptions, including the 24-month exception for leaves of absence, and specific provisions
for professional development leaves and exchange programs. While counsel acknowledges
that there are distinctions made which tend to favour an employee on either professional
development leave or an exchange program, he stresses that those circumstances are
distinguishable from the employee who is on leave for personal reasons, of whatever nature.
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In his submission, the professional development or exchange program leaves can be
considered a form of "quasi-service" to the College which, by their very nature, may have
caused the parties to agree that there was no need to place a cap on such absences for the
purposes of the accumulation of seniority.
Counsel for the College frontally challenges the logic of the Union's position.
Stressing that the provision of the collective agreement in question makes distinctions as
between employees solely on the grounds of establishing a class of non-active employees,
he argues that the position of the Union would lead to absurd results. Why, he submits,
should disabled employees who are not at work but who are, nevertheless, employees, be
denied the benefits of full salary, if the Union's notion of discrimination is correct? On the
basis of the Union's reasoning, he suggests, it could be asserted that the long-term disability
benefits received by disabled employees, which amount to 60% of their normal salary, are
of themselves discriminatory, based on the prohibited ground of physical disability. Counsel
submits, however, that that reasoning breaks down because, as the parties themselves
recognized in the crafting of their collective agreement, there are valid lawful distinctions
to be made between employees who are at work and employees who are not at work, for
whatever reason.
Counsel for the College submits that the proper approach to the issue of prohibited
discrimination is reflected in a number of prior arbitral awards including the following: Re
Canadian Airlines International Ltd. and Canadian Union of Public Employees, Airline
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Division (1993), 32 L.A.C. (4th) 398 (Springate); Town of Ajax and Canadian Union of
Public Employees, Local 54 (1991), 23 L.A.C. (4th) 77 (Rayner); Re Windsor Western
Hospital Centre and OPSEU, Local 143 (an unreported award of a board of arbitration
chaired by Arbitrator Douglas C. Stanley, dated October 24, 1994); Canada Packers Inc.
and United Food and Commercial Workers, Local l14P (1992), 28 L.A.C. (4th) 193
(Solomatenko); Re Corporation of City of Barrie and Canadian Union of Public Employees,
Local 2380 (1994), 40 L.A.C. (4th) 168 (M.G. Picher); Re Versa Services Ltd. and Milk &
Bread Drivers, Dairy Employees, Caterers & Allied Employees Union, Local 647 (1994), 39
L.A.C. (4th) 196 (R. M. Brown); Stelco Inc. Hilton Works and United Steelworkers of
America, Local 1005, (an unreported award of Arbitrator O.V. Gray, dated February 13,
1995); and Re Metropolitan General Hospital and Ontario Nurses Association (1995), 48
L.A.C. (4th) 291 (Kennedy).
DECISION
The Canadian Airlines case does provide useful insights into the kinds of issues
raised by parties who are at odds with respect to the meaning of equality and discrimination.
In that case, the flight attendants employed by the predecessor Wardair Canada Inc..grieved
that the proration of vacation entitlement roi employees on maternity leave was a form of
discrimination prohibited on the basis of sex, contrary to the Canadian Human Rights Act,
R.S.C. 1985 c. H-6. In fact, the proration provisions of the collective agreement provided
greater protection to employees absent on maternity leave than it did to employees absent
for periods of illness or disability, although the protection was not as great as that provided
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to employees on witness or jury duty leaves of absence, who suffered no proration
whatsoever. At pp.405-08, the arbitrator reviewed the authorities and reasoned as follows
to conclude that the employer's practice, and the relevant provisions of the collective
agreement, did not violate the Canadian Human Rights Act:
Union counsel contended that Wardair's action in prorating the vacation
entitlement of employees on maternity leave was a form of discrimination on
the basis of sex since it placed an impediment on pregnant women not placed
on other employees absent from the work place. In support of this contention
counsel noted that the collective agreement did not call for the prorating of
the vacation entitlement of flight attendants who were on a leave of absence
for jury or witness duty, irrespective of the length of time they were off work.
Counsel submitted that it was discriminatory for Wardair to provide
employees absent due to jury or witness duty with greater benefits than
employees whose absence from the work place was the produce of an innate
characteristic, namely, their sex.
In support of .this position union counsel relied on the judgment of the
Supreme Court of Canada in Brooks v. Canada Safeway Ltd. (1989), 59
D.L.R. (4th) 321, [1989] 1 S.C.R. 1219, 89 C.L.L.C. 17.012. In that case an
employer's group insurance plan had provided weekly benefits to compensate
employees for lost wages as a result of accident or sickness. The plan excluded
pregnant employees for a 17-week period during which they were entitled to
receive unemployment insurance benefits. The Supreme Court unar~imously
held that the disentitlement of pregnant women during the 17-week period
constituted discrimination by reason of pregnancy. The court also held that
this was discrimination on the basis of sex which contravened the Human
Rights Act of Manitoba. A key portion of the court's judgement, which was
delivered by Chief Justice Dickson, read as follows at pp. 334-5:
I agree entirely that pregnancy is not characterized properly as
a sickness or an accident. It is, however, a valid health-related
reason for absence from the workplace and as such should not
have been excluded from the Safeway plan. That the exclusion
is discriminatory is evident when the true character, or
underlying rationale, of the Safeway benefits plan is
appreciated. The underlying rationale of this plan is the
laudable desire to compensate persons who are unable to work
for valid health-related reasons. Pregnancy is clearly such a
reason. By distinguishing "accidents and illness" from pregnancy,
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Safeway is attempting to disguise an untenable distinction. It
seems indisputable that in our sodety pregnancy is a valid
health-related reason for being absent from work. It is to state
the obvious to say that pregnancy is of fundamental importance
in our society. Indeed, its importance makes description
difficult. To equate pregfiancy with, for instance, a decision to
undergo medical treatment for cosmetic surgery - which sort of
comparison the respondent's argument implicitly makes - is
fallacious. If the medical condition associated with procreation
does not provide a legitimate reason for absence from the
workplace, it is hard to imagine what would provide such a
reason. Viewed in its social context, pregnancy provides a
perfectly legitimate health-related reason for not working and
as such it should be compensated by the Safeway plan. In terms
of the economic consequences to the employee resulting from
the inability to perform employment duties, pregnancy is no
different from any other health-related reason for absence from
the workplace.
Furthermore, to not view pregnancy in this way goes against
one of the purposes of anti-discrimination legislation. This
purpose, which was noted earlier in the quotation from
Andrews, supra, is the removal of unfair disadvantages which
have been imposed on individuals or groups in society. Such an
unfair disadvantage may result when the costs of an activity
from which all of society, benefits are placed upon a single
group of persons. This is the effect of the Safeway plan. It
cannot be disputed that everyone in society benefits from
procreation. The Safeway plan, however, places one of the
major costs of procreation entirely upon one group in society:
pregnant women. Thus, in distinguishing pregnancy from all
other health-related reasons for not working, the plan imposes
unfair disadvantages on pregnant women. In the second part of
this judgement I state that this disadvantage can be viewed as
a disadvantage suffered by women generally. That argument
further emphasizes how a refusal to find the Safeway plan
discriminatory would undermine one of the purposes of anti-
discrimination legislation. It would do so by sanctioning one of
the most significant ways in which women have been
disadvantaged in our society. It would sanction imposing a
disproportionate amount of the costs of pregnancy upon women.
Removal of such unfair impositions upon women and other
groups in society in a key purpose of anti-discrimination
furthers this purpose.
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In sum, if an employer such as Safeway enters into the field of
compensation for health conditions and then excludes
pregnancy as a valid reason for compensation, the employer has
acted in a discriminatory fashion.
In the instant case employees on maternity leave actually received more
favourable treatment with respect to vacation entitlement than did employees
off work on account of sickness or injury. They also received more favourable
treatment than did employees off on personal, educational or union leave.
Employees on maternity leave were treated in the same manner as were
employees on a child care leave of absence where the child was adopted. The
only group the union can point to who might have received more favourable
treatment than employees on maternity leave were employees on witness or
jury duty leave.
In the Brooks case the Supreme Court of Canada compared the situation of
women off work on maternity leave with other employees who were off work
for health-related reasons. The union here seeks to make the comparison with
a group whose absence from work was in no way related to their health. Any
employees who while on witness leave actually testified on behalf of Wardair
could reasonably be said to have been working for the company. Unlike
employees on '.maternity leave, all of those on witness or jury leave would have
been required to attend at a specific location at a particular time and stay
until dismissed. They would not have had control over their activities while
attending to their witness or jury duties. In addition, the likelihood of a
Wardair flight attendant actually, being on a jury or giving evidence for a
period longer than 18 weeks (the time during which the vacation entitlement
of an employee on maternity leave was not prorated) would presumably have
been remote. Having regard to these considerations, I am not satisfied that
the situation involving employees on witness and jury leave reasonably leads
to the conclusion that flight attendants on maternity leave were being
discriminated against.
Union counsel contended that any treatment accorded a pregnant woman
which differs from the treatment accorded employees generally is
discriminatory and contrary to the Canadian Human Rights Act. He
submitted that Wardair's action in taking away vacation entitlement which
otherwise would have accrued to employees on maternity leave was
discriminatory irrespective of the manner in which Wardair treated other
employees absent from work.
A similar argument was raised in Re Glen Haven Manor Corp. and C.U.P.E.,
Loc. 2330 (1991), 19 1.a.c. (4th) 61 (Darby). In that case the employer applied
a prorating policy equally to all employees who were on unpaid leaves. The
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union, relying on the Supreme Court of Canada's judgment in the Brooks
case, contended that by prorating the vacation entitlement of an employee on
maternity leave the employer had discriminated against her on the basis of
her sex contrary to the Human Rights Act of Nova Scotia. The board of
arbitration rejected this contention. The board commented that unlike the
Brooks case, where an employee had been denied benefits available to
everyone else, the employee in question had been treated exactly the same as
every other employee. The board's reasoning was summarized as follows at
pp. 71-2:
In conclusion and to recapitulate: in our opinion, while
discrimination based on pregnancy would be discrimination
based on sex and therefore illegal, there is neither directly nor
indirectly any discrimination whatsoever whether based on sex,
on marital status or on physical (or mental) disability in the
Employer's policy of prorating vacation benefits for females on
maternity leave. It is important to recognize that no
"obligations, penalties, or restrictive conditions" are imposed on
either the Grievor or on pregnant females or on females
generally that is not imposed on everyone in the bargaining
unit. Nor is this a case where the Employer applied a criterion
that "less favourably treats all women" or '~rhere special, less
favourable treatment is accorded to a class consisting only of
women, albeit not all women". In short, there is not
discrimination between pregnant women and anyone else either
directly or indirectly. Finally, there is no evidence that the
policy of proration imposes an unfair disadvantage on that
group in society called pregnant women such as might trigger
the need for some affirmative or at least neutralizing action in
order to fulfil or further the key purpose of anti-discrimination
legislation, which is to remove such unfair disadvantages.
For a somewhat similar result involving the issue of seniority accrual during
maternity leave, see Re Ajax (Town) and C.U.P.E. Loc. 54 (1991), 23 L.A.C.
(4th) 77 (Rayner).
The rationale underlying the union's position appears to be that for vacation
entitlement purposes the situation of an employee on maternity leave should
be compared with what the employee would have received had she not
become pregnant and gone off work. The discussion in the Supreme Court's
judgment in the Brooks case relating to the burden of the costs associated
with procreation provides a philosophical basis for this contention. (Arguably
the judgement makes an even stronger case for governments, acting on behalf
of sodety generally, to assume a greater proportion of the costs of
- 19-
procreation.) If taken to its logical conclusion the union's position would
appear to require that an employer "make whole" an employee on maternity
leave and treat her for pay and benefit purposes as if she was still actively at
work.
The Canadian Human Rights Act prohibits an employer from differentiating
adversely in relation to an employee based on a prohibited ground of
discrimination. To conclude that this goes beyond requiring that employees
on maternity leave be treated as well as other employees off work for health-
related reasons, and instead requires that they be treated in the same manner
as employees actively at work, would require that I give the Act an
interpretation much broader than similar provisions have been given to date.
As indicated above, the arbitral jurisprudence, although limited, has rejected
this type of approach. Further, although the Supreme Court of Canada in the
Brooks case expressed its concern about pregnant women bearing a
disproportionate amount of the costs of procreation, it did not adopt the
approach being advanced by the union. Instead the court held only that
employees on maternity leave were entitled to be treated in a manner similar
to other employees who were off work for health-related reasons.
The Town of-Ajax case is of limited value, as it relates to the interpretation of a
provision of the Employment Standards Act, R.S.O. 1980, c. 137, in respect of maternity
leave which is no longer in effect. The Windsor Western Hospital case is closer, on its facts,
to the issue in the case at hand. Under the collective agreement there considered, .the
hospital consistently denied the accrual of vacation or sick benefits to all employees who
were absent from work for whatever reason, including personal reasons, illness, union
business in excess of one month, pregnancy and adoption, education leave and leave
pursuant to a compensable injury under the Workers' Compensation plan. The majority of
the board of arbitration rejected the Union's claim that the provision of the collective
agreement and the employer's practice constituted prohibited discrimination against the
grievor, who suffered a period of absence for a compensable injury. Having given
consideration to the definition of prohibited grounds of discrimination under Section 5 of
- 20 -
the Code, the definition of disability (then handicap) under Section 10 of the Code and the
concept of "constructive discrimination" found in Section 11 of the Code the majority
concluded that no discrimination was made out. At ppll-12, the Board reasoned, in part,
as follows:
The issue we must decide is whether the provision in the collective agreement
which denies employees on a leave of absence the right to accrue vacation
and sick leave is "discriminatory." If it is, it can only be so because of the
broader definition of discrimination found in s. ll of the Code. In accordance
with that section, what we have to ask is whether the collective agreement
provisions - "results in the exclusion, restriction or preference of a group of
persons who are identified by a prohibited ground of discrimination and of
whom the person is a member." The "group" which the collective agreement
singles out to deny accrual of sick leave and vacation is not "a group of
persons who are identified by a prohibited ground of discrimination." The
group denied accrual of sick leave and vacation is all those employees who
are on leaves of absence. The Code does not list '"oeing on a leave of absence"
as a prohibited ground of discrimination.
It might be argued that employees with a "disability" are a group within this
larger group and are therefore covered by the language. That is really the
essence of constructive discrimination - that a general innocuous exclusion
sweeps in all members of a protected group. In this case there are really two
protected groups - those with "handicap" and the person who is defined as
handicapped because he/she "has or has had, Or is believed to have or have
had an injury or disability for which benefits were claimed or received under
the Workers' Compensation Act." However, not all employees with a
handicap, or all employees who have or have had an injury for which benefits
are claimed, are going to be on leaves of absences. Thus the general exclusion
does not sweep in all or even a majority of the members of a protected group.
If we had to decide whether the qualification was reasonable and bona fide,
since it is accepted in so many collective agreements that vacation and sick
leave are benefits earned through attendance at work, we would conclude that
the qualification in this case is reasonable and bona fide.
In the Corporation of the City of Barrie case, the Chair of this Board, sitting as a
sole arbitrator, was compelled to consider whether the prorating of vacation credits during
- 21 -
pregnancy leave was in violation of the Employment Standards Act, R.S.O. 1990 c. EA4 as
well as the Ontario Human Rights Code, R.S;O. 1990 c. H. 19. Although the grievance was
allowed, based on the arbitrator's analysis of the provisions of the Employment Standards
Act, the union's argument with respect to an alleged breach of the Human Rights Code was
rejected. In coming to that conclusion, the arbitrator placed substantial weight on the fact
that the collective agreement treated employees other than employees on pregnancy leave
in a similar fashion with respect to the prorating of vacation credits. At pp.181-83, the
following analysis appears:
I have equal difficulty with the suggestion of the union's representative that
the reduction of vacation entitlement during a pregnancy leave constitutes
unlawful discrimination on the basis of either sex or age. It is, of course, self-
evident that pregnancy leave can apply only to female employees. When art.
19 of the collective agreement is read in its entirely, however, it becomes
apparent that. the parties did not intend to isolate or identify a group of
employees for adverse treatment based upon their sex. Rather, the article
reflects a number of circumstances in which the parties deemed it appropriate
to reduce vacation credits by reason of the extended absence of an employee
in Certain circumstances. They have done so, for example, for an employee of
either sex who takes a personal leave of absence for a period in excess of 20
working days or who takes a leave of absence to assume a full-time temporary
salaried position with the union. In those circumstances, as in the case of
pregnancy leave, the parties have agreed that an employee should not be
deemed to have earned paid vacation entitlement accrued over the period of
an extended leave of absence. While the reasons for the absences may differ,
and it is true that only one of them, pregnancy, can apply in the case of
female employees, the provision for prorating vacation entitlement is not, by
that fact alone, discriminatory on the basis of sex.
Nor can the arbitrator conclude that the greater vacation entitlement
protected in respect of parental leave, which applies to employees of both
sexes, of itself, makes the pregnancy leave provisions of the collective
agreement discriminatory on the basis of sex. The prorating of vacation
entitlement in respect of pregnancy leave is a long-standing provision which
is not based on an invidious distinction, but is generally based on the
relationship between vacation entitlement and time worked in the service of
the employer. The distinction can be no more invidious merely by reason of
the more generous treatment of vacation entitlement in relation to parental
leave introduced into the collective agreement by the amendments to the
Employment Standards Act in December of 1990. For these reasons the
arbitrator is of the view that the union has failed to establish that the
prorating of vacation entitlement for employees on pregnancy leave
constitutes discrimination on the basis of sex, contrary to the Ontario Human
Rights Code.
I am likewise satisfied that the union has failed to establish discrimination on
the basis of age in the application of art. 19:05 of the collective agreement.
As the corporation's spokesperson submits, there is, very simply, no evidence
before the arbitrator to establish that age is a determining factor in respect
of adverse impacts in the application of art. 19:05. It is true that employees
with longer service are impacted more severely by the prorating of vacation
entitlement than are employees with less than three years of service whose
two-week period of vacation cannot be reduced. However, the distinction
applied to the employees has nothing to do with their age, but turns entirely
on the length of their service. While it may be, as a matter of incidental fact,
that long-service employees are usually older than employees with less service,
that will not always be so and, more significantly, it is not the basis upon
which vacation entitlement is prorated under the terms of arts. 16:01 and
19:05 of the collective agreement. In the arbitrator's view, the mere fact that
employees of longer service, who may in some cases be older, have more to
lose in the application of these provisions does not, of itself, constitute
discrimination on the basis of age in the sense prohibited by the Ontario
Human Rights Code.
The Canada Packers case involved the termination of an employee by reason of her
/
loss of seniority pursuant to a provision of the collective agreement which distinguished
seniority after certain defined periods of breaks in active service. As the employee was
absent from work by reason of a compensable injury, her union alleged, among other things,
a violation of the discrimination provisions of the Ontario Human Rights Code. In a course
of analysis which arbitrators have subsequently declined to follow, the majority of the Board
ruled that a violation of the standards of the Code could only be found if there was a causal
relation to the employee's termination, rather than a mere correlation in time between her
- 23 -
absence by reason of disability and her loss of seniority. The Versa Services case is, we
believe, more closely analogous to the dispute before us. The grievance in that case was
filed, in part, in respect of a claim of employees receiving LTD benefits objecting that a
provision of the collective agreement requiring them to pay half the cost of all benefits was
contrary to the Human Rights Code, where the employer paid the full cost of all benefits
for other employees, with the exception of LTD and optical benefits for which it paid 50%
of the cost. The collective agreement there under consideration contained the following
language in article 17.05:
Employees on LTD will be allowed to continue their benefit coverage at the
Company's cost and remain enroled in the Company's benefit plan provided
the employee reimburses the Company for the cost of the benefits.
The board of arbitration agreed with the interpretation of the employer that Article 17.05
properly required employees collecting LTD benefits to make greater contributions in the
form of benefit premiums than was the case for employees who were actively at work. Part
of the Code considered by the board was Section 17 which provides, in part, as follows:
17 (1) A right of a person under this Act is not infringed
for the reason only that the person is incapable of
performing or fulfilling the essential duties or
requirements attending the exercise of the right
because of handicap.
(2) The Commission, a board of inquiry or a court
shall not find a person incapable unless it is
satisfied that the needs of the person cannot be
accommodated without undue hardship on the
person responsible for accommodating those
needs, considering the cost, outside sources of
funding, if any, and health and safety
requirements, if any.
Arbitrator R.M. Brown dismissed the grievance. He reasoned, in part, that there was
no discrimination as the fundamental entitlement to contributions by the employer was
contractually based, for all employees, on attendance at work. Further, he concluded that
the Code and, in particular, Section 17, primarily addresses the issue of participation, rather
than compensation, and that no discrimination is made out if rules governing compensation
are applied generally to all employees, whether absent by reason of disability or actively at
work. The core of Arbitrator Brown's reasoning is reflected at pp 201-203:
Are employees on LTD benefits being denied equal treatment within the
meaning of the Code? They are being treated in a less advantageous manner
than emplOyees on the job for whom the company contributes towards the
cost of benefits. However, active employees are performing services in
exchange for this benefit contribution, whereas those on LTD are not working.
LTD benefits do not commence until an employee has been off the job for
more than a year and continue until an employee is able to work again or
reaches retirement age. There is no evidence to suggest the employer makes
any benefit contributions for an employee without a handicap who is absent
for period of similar duration. In the absence of such evidence, I cannot find
handicapped employees collecting LTD benefits are being treated worse than
those without a handicap who have a similar attendance record. I must
assume entitlement to benefit contributions turns on attendance at work,, not
on handicap. In other words, everyone is treated the same way, based upon
attendance, regardless of handicap. If this type of equal treatment is all the
Code requires, there would be no violation.
This is one way to understand equal treatment, but there is another way which
places a greater obligation on employers. These two very different
understandings of equality are described in Equality in Employment (1984),
the report of the Royal Commission on Equality in Employment (p.3):
Sometimes equality means treating people the same, despite
their differences, and sometimes it means treating than (sic) as
equals by accommodating their differences.
- 25 -
Formerly, we thought that equality only meant sameness and
that treating everyone as equals meant treating everyone the
same. We now know that to treat everyone the same may be to
offend the notion of equality. Ignoring differences may mean
ignoring legitimate needs. It is not fair to use the differences
between people as an excuse to exclude them 'arbitrarily from
equitable participation. Equality means nothing if it does not
mean we are of equal worth regardless of differences in gender,
race, ethnicity, or disability. The projected, mythical, and
attributed meaning of these differences cannot be permitted to
exclude full participation.
To some extent at least, the notion of equal treatment embodied in the
Human Rights Code requires employers to do more than treat everyone the
same without regard to handicap. Section 17 requires employees to
accommodate handicapped people by taking special measures to allow them
access to employment. Consider a person whose handicap prevents her from
operating a machine as it presently exists, but who could operate the machine
if it were modified in a manner which would not impose an undue hardship
on the employer. To refuse to employ this person as a machine operator
because of her disability would be a violation of the Code. The employer is
not permitted, to exclude this individual from employment by treating her in
the same way as an able-bodied person who is required to operate the
machine in its unmodified form. As well as requiring an employer to modify
the work environment, the duty to accommodate also may require an
employer to grant unpaid leave to someone whose disability temporarily
prevents her from working. In these ways, people with a handicap must be
accommodated by taking special measures to allow them to participate in the
working world, so long as doing so does not entail undue expense for the
employers concerned.
The case at hand is not about modifying jobs so they can be performed by
disabled people. It is not about entering or leaving the world of work. The
handicaps afflicting employees on LTD benefits are sufficiently serious that
they are unable to work for more than a year. The Union contends the
employer is obliged to make benefit contributions on their behalf while they
are off the job. As these contributions are a form of compensation, this case
concerns compensation while not working, rather than participation in the
world of work. According to the union, the Code compels the employer to
bear the cost of providing benefits to these employees, even though benefits
are not provided to able-bodied employees who are absent from work for such
a prolonged period. Does equal treatment require not only accommodative
measures to allow people to work, but also special payments for those unable
to do so?
- 26 -
I think not. In my view, the Code treats compensation differently from
participation. The reference in s.17 to a person's capability to perform duties
indicates this section applies to engagement in active employment. On this
from, s.17 adopts the broader notion of equal treatment which requires
differences to be accommodated, so as not to exclude a handicapped person
from a work place. Section 17 cannot be construed as applying the same
broad notion of equal treatment to compensation because it contains no
reference to compensation. There is no other section of the Code which
specifically applies this broader understanding of equality, which requires
special measures, to compensation for handicapped employees. I believe the
absence of such a section indicates a legislative intention to apply a different
understanding of equality to matters of compensation. A handicapped person's
only entitlement is to be compensated in the same way as someone without
a handicap. If employees without a handicap receive compensation during
short absences, so too must those with a disability. Conversely, if most
employees receive no compensation during prolonged absences, those with a
handicap have no complaint when they are treated in the same way.
In this Board's view, the distinction identified by Arbitrator Brown between the
protections accorded by the Human Rights Code to issues of access to work, on the one
hand, and the very different issues of entitlement to compensation, on the other, is
significant and useful. It is also, to some extent, rooted in judicial authority, as discussed
below. We consider that distinction to be instructive for the purposes of resolving the
dispute before us by the proper application of the protections enshrined in the Human
Rights Code.
The analysis in the Versa Services case was generally approved and followed by
Arbitrator Gray in the Stelco case. The arbitrator there concluded that a provision in the
collective agreement which limited an employee's entitlement to vacation time off, based
on the hours that the employee worked during a given year was not discriminatory, contrary
-27-
to the Human Rights Code, as it applied to a grievor whose vacation entitlement was
reduced by reason of an extended absence from work due to an injury for which he was in
receipt of Workers' Compensation benefits. At p.19 of the award, after thoroughly reviewing
and quoting the reasoning of Arbitrator Brown in the Versa Services case, Arbitrator Gray
comments:
I agree with arbitrator Brown's conclusion that the Code does not require an
employer to pay an individual who is unable to perform work the
compensation to which someone who did perform that work would be
entitled, merely because the individual's inability to perform the work is due
to a handicap.
As can be seen from the jurisprudence, employers, unions and arbitrators have
struggled mightily to come to grips with the sometimes difficult issue of equality of
treatment for employees with a disability, in respect of various kinds of rights relating to
their employment. There have, to be sure, been inconsistencies in the reasoning and
outcomes of arbitration awards in this area. A helpful appreciation of the evolution of
thought with respect to the application of the Human Rights Code to collective agreement
provisions which impact disabled employees is reflected in the decision of the Board of
Arbitration chaired by Arbitrator Kennedy in Re Metropolitan General Hospital and
Ontario Nurses Association. The issue in that case is the same as that before us. Because
of a disability, the grievor was absent from work for a substantial period of time. Article
10.04 of the collective agreement provided a general rule whereby all leaves of absence in
excess of 30 calendar days would result in the cessation of the accumulation of "seniority or
- 28 -
service for any purpose under the Collective Agreement for the period of the absence in
excess of (30) continuous calendar days...". The provision went on, however, to make special
provision for disabled employees in the following terms:
Notwithstanding this provision, seniority shall accrue for a period of one year
is a nurse's absence is due to disability resulting in WCB benefits or LTD
benefits including the period of the disability program covered by
Unemployment Insurance.
In the Metropolitan General case, the grievor's seniority was reduced by virtue of her
absence from work for a period in excess of one year, caused by a work-related,
compensable disability. The union argued that the collective agreement provision adversely
affected the grievor, and discriminated against her contrary to section 5(1) of the Ontario
Human Rights Code, resulting in the denial of accrual of her seniority, by reason of which
she became disentitled to a full-time position. The union argued, in part, that while article
10.04 appeared to treat all nurses equally, nurses who have suffered absences from work by
reason of a disability were adversely affected, as compared with able-bodies nurses, because
of the fact that their absence from work was due to a disability. Citing a decision of the
Divisional Court of the Supreme Court of Ontario in Re Etobicoke General Hospital and
O.N.A. (1993), 14 O.R. (3d) 40, the union argued that the reduction of seniority standing
negatively impacted an employee's access to work and promotion opportunities and,
therefore, constituted constructive discrimination contrary to the Code.
- 29 -
Given the importance and difficulty of the issue we are called upon to decide, we
deem it appropriate to reproduce, at some length, both the summary of argument and
reasons for its decision related by the majority of the board of arbitration in the
Metropolitan General Hospital case. At pp.296-300, the following appears:
Two derisions argued by the union to be directly on point were Thorne v.
Emerson Electric Canada Ltd. (1993), 18 C.H.R.R. D/510 (Leighton), and
Riverdale Hospital (Board of Governors) and C.U.P.E., Loc.79 (1993), 39
L.A.C. (4th) 63 (Stewart). In Thorne the complainant was absent and
receiving workers' compensation benefits for a period of time, and on her
return to work and pursuant to the specific provisions of the collective
agreement under which she worked, her seniority was adjusted to exclude part
of the absence. The complainant relied on the same provisions of the Code
as are raised in this case by the union, and at p.D/514 the adjudicator stated
the following:
It therefore find that Ms. Thorne, being a member of a specific
class which is protected under the Code, handicapped in this
case, was adversely affected by the provision in the collective
agreement in that she lost six months of seniority because she
was handicapped. Although the provision in the collective
agreement is neutral on its' face, it discriminates against anyone
qualifying as handicapped [who is] absent from work for more
than one year as a result of that handicap.
Both the employer and the union were party to that complaint and were
found to be in violation of the Human Rights Code. The Riverdale Hospital
decision considered equivalent facts and collective agreement language and
concluded that to the extent the collective agreement language precluded
accrual of seniority during a period of absence due to a workers'
compensation injury, those provisions constituted inequality in treatment with
respect to employment in violation of s.5 of the Human Rights Code.
For the employer, it was argued that there were two problems with the
union's logic and with the decisions upon which it had been based. First, the
argument did not recognize a proper discrimination definition. The argument
and some of the cases treat discrimination simply as someone being treated
differently from someone else. It was argued that something did not constitute
discrimination just because the result was different and that to constitute
- 30 -
discrimination a person had to be preferred or penalized because of the
particular difference. Second, on the union logic, it constitutes discrimination
to deprive someone who is off work of what people who are at work are
entitled to receive. Then why would that not extend to wages? It was argued
that if the union is right on its argument, people within a class protected by
the Code should get full wages and all other benefits whether or not they are
at work. In the employer's view, there was at this point in time no authority
or logic to support such a proposition. Particular reference was made to the
decision in Re Versa Services Ltd. and Milk & Bread Drivers, Dairy
Employees, Caterers & Allied Employees Union, Loc. 647 (1994), 39 L.A.C.
(4th) 196 (R.M. Brown), as providing the rational basis for reconciling the
existing case law and establishing where it was appropriate to draw the line
between what is protected for disabled employees and what is not. Based on
the Versa Services decision, it was argued that the purpose of the provisions
of the Code was to protect participation in and access to the workplace rather
than to ensure receipt of all benefits and entitlement which people who come
to work will receive. It was the employer's position that under the collective
agreement people not at work do not accumulate seniority on the same basis
that they do not get paid salary. That does not constitute penalizing them
because they are part of a particular class. On the issue of an appropriate
definition for "discrimination" and the requirement that the particular penalty
or privilege be as a result of the particular characteristic protected in the
Code, reference was made to Re Canada (Treasury Board - Employment and
Immigration) and Dekoning (1993), 33 L.A.C. (4th) 203 (Canada Public
Service Staff Relations Board) (Burke), and Andrews v. Law Society of British
Columbia (1989), 56 D.L.R. (4th) 1, [1989] 1 $.C.R. 143, 25 C.C.E.L. 255.
It was the position of the employer that for the purposes of determining
whether or not there was discrimination within the meaning of the Code, the
appropriate comparison of the grievor was to others who for varying reasons
did not come to work, rather than with those who were at work. Reference
was made to Re Canadian Airlines International Ltd. and C.U.P.E. (1993),
32 L.A.C. (4th) 398 (Springate); Re Glen Haven Manor Corp. and C.U.P.E.
Loc. 2330 (1991), 19 L.A.C. (4th) 61 (Darby), and Re Family Service Assn. of
Metropolitan Toronto and O.P.S.E.U., Loc. 594 (Schif), unreported
[summarized 36 C.L.A.S. 469], October 19, 1994. Included in the employer's
references in this area was the Central Hospital award dated May 30, 1989,
issued by Gall Brent, with respect to a number of grievances relating to art.
ll.07(h) of the participating hospitals' master agreement.
The most useful authority in the employer's view was the Versa Services Ltd.
decision and the distinction it drew between access and participation in the
workplace which was protected by the Code and particular compensation and
collective agreement provisions that were not within the Code protections.
-31 -
The deemed termination cases relied upon by the union constituted denial of
access to the workplace by reason of the disability or other protected
characteristic and were, therefore, recognized by the Versa Services Ltd. case.
That was the sort of protection intended to be conferred by the provisions of
the Code. When the issue involves something other than access to the
workplace and a consideration of the compensation that flows from being at
work, the focus then is on whether or not the protected class is being treated
less favourably than others not at work. If they are, then that too is a violation
of the protections granted by the Code. It was the employer's argument that
in the context of this collective agreement, disabled employees receiving
workers' compensation benefits are, in fact, given greater benefits under the
seniority provisions than other employees absent from work, and there is,
therefore, no discrimination.
With reference to the Emerson Electric decision relied upon by the union, it
was the employer's argument that the decision showed no logic or thought
process with respect to the issue being decided. The decision merely
constituted a recital of the facts and of a number of other decisions, and then
the adjudicator simply jumped to a conclusion without any discussion of the
concepts or relating that conclusion to either the facts or the authorities. The
employer held a similar view of the Riverdale Hospital decision on the basis
that it simplY .relied on the deemed termination cases and seemed to say that
if something bad happens to you, it must be discrimination. It was argued that
the decision in Re Ajax (Town) and C.U.P.E., Loc. 54 (1991), 23 L.A.C. (4th)
77 (Rayner), which was distinguished by the arbitrator in the Riverdale
decision, was, in fact, directly on point with respect to the issues involved in
this arbitration.
In reply, the union noted that the employer characterized the situation as
equivalent to a compensation issue, and in that context the parties operate in
a system where compensation in these circumstances is covered by the
Workers' Compensation Act, R.S.O. 1990, c. W. 12. Accordingly, for all intents
and purposes, injured employees are receiving moneys and continue as
employees of the employer, and they may be considered to be in receipt of
wages in so far as the workers' compensation benefits are concerned. The
union characterized it as a seniority issue, not a compensation issue, and that
employees have rights under the collective agreement related to promotions
and bumping that are governed by seniority. Within the language of the Versa
Services Ltd. decision, those fights are just the same as access to the
workplace, and that access is what the grievor is being denied because of the
non-accrual of seniority. The denial of seniority has the potential of being a
denial of access to the workplace, and it is because of the handicap the
grievor has been denied accrual of seniority.
- 32 -
The issues and positions of the parties have been clearly set out in the
arguments already summarized in this award, and it is obvious that the
existing body of case law contains inconsistencies and contradictions. Against
that background, it is our view that the arguments of the employer constitute
the preferable summary of the principles to be garnered from the authorities
to be applied to the factual circumstances of this case. That being said, this
has not been an easy decision. We recognize on the one hand the importance
of giving to human rights legislation a broad and purposeful interpretation in
the achievement of important public policy initiatives. At the same time, we
recognize the importance of consistency and predictability in the ongoing
application of collective agreement provisions in the workplace. The particular
provision which we are considering is contained in a collective agreement that
governs the terms and conditions of employment for nurses employed not only
by this employer, but also by a large number of other hospitals throughout the
Province of Ontario. That collective agreement is the product of extensive
central negotiations, coupled with arbitrated provisions where the parties
could not reach agreement on their own. Those negotiations and arbitrations
were all carried on by sophisticated and experienced parties with detailed
knowledge of the sector within which they were operating. Against that
background, a board of arbitration ought to conclude that those parties
overlooked fundamental human rights legislation in their negotiations and
proceedings only in the face of clear and convincing evidence that they did.
It was the employer's position in argument that the collective agreement
provision involved in fact gave greater benefits under the seniority provisions
when compared to other employees, as opposed to constituting discrimination
against them. The validity of this argument in the overall context of a
collective agreement is recognized by arbitrator Rayner in the Town of A~ax
decision wherein at p.82 he stated as follows:
In our opinion we must look at the article as a whole and
consider the positive and negative implications of the article. To
do otherwise would be to artificially sever the bargain that the
parties freely made. The board cannot-and should not speculate
as to what trade-offs were made when art. 11:07 was bargained.
To consider only the negative aspect of the article would be to
rewrite the contract.
The employer in its argument placed considerable reliance on the rationale
of the Versa Services Ltd. decision, and it is a matter of record that that
decision was reviewed by the Ontario Divisional Court composed of Southey,
Boland and Rosenberg JJ. on February 7, 1995. The application was dismissed
with the following endorsement on the record:
- 33 -
It is unnecessary to consider in this 'case the effect of the
standard of review of the 1992 amendments to s.45 of the
Labour Relations Act. We are all of the view that the arbitrator
was correct in his conclusion that there had been no violation
of the rights of handicapped employees to equal treatment with
respect to benefit contributions. Even applying the test of
correctness, the application for judicial review must be
dismissed.
In the context of this collective agreement, seniority accrual for all employees
of whatever characteristic is based on time actually worked. There is no
distinction or discrimination that is based on or results from the fact that the
grievor is within the language of the Ontario Human Rights Code subject to
a handicap as defined in the Code. The Code does not confer on the grievor
a particular seniority regime that protects her from the normal consequences
of not being at work. Only if others in equivalent non-working circumstances
were given seniority entitlement that exceeded that available to the grievor
could there be found to be discrimination. On the facts before us, the reverse
is true, and employees of the particular characteristic of the grievor receive
preferable treatment with respect to the continued accumulation of seniority.
In the result, therefore, it is our conclusion that to the extent the grievance
is based on-the Ontario Human Rights Code, the grievance must be
dismissed. We remain seised with respect to the determination of the grievor's
actual seniority, should the parties not be able to agree upon same.
As can be seen from the foregoing analysis and conclusion, both boards of arbitration
and the courts have accepted that there is a valid distinction between issues of compensation
or earnings, or other monetary/benefit entitlements, on the one hand, which are based on
work actually performed and are not generally protected by the provisions of the Human
Rights Code and, on the other hand, concepts of employment status and access to work,
which are so protected. Central to the analysis which an adjudicative body must make in
determining whether there has been inequality of treatment, contrary to section 5 of the
Code or, alternatively, constructive discrimination contrary to section 1 of the Code, is
- 34 -
establishing the base comparator group. The major premise of the decision of the majority
in the Metropolitan C, eneral Hospital case, as in the argument of the employer before us,
is that the appropriate comparator group for the purposes of assessing unequal treatment
is all employees who are absent from work for a period in excess of a defined limit.
Arbitrator Kennedy found that nurses whose accrual of seniority was limited by reason of
their absence from work were treated no worse than nurses who were absent for other
reasons and, indeed, they were given better treatment under the terms of the collective
agreement. The board therefore rejected the comparator premise advanced by the Union,
which is that disabled employees should be compared to able-bodied employees who do not
suffer absences from work, as a basis for determining equality or inequality of treatment or,
alternatively, adverse impact or constructive discrimination.
The second observation which flows from the analysis of the majority in the
Metropolitan General Hospital case is' that it treats seniority as analogous to issues of
compensation or entitlement to benefits which, under the collective agreement, are based
on periods of time spent actively at work. The majority of the board rejected the position
of the Union that a reduction in an employee's seniority entitlement is tantamount to a
reduction to his or her access to employment, an interest which both arbitrators and the
courts have acknowledged to be protected by the Code. For reasons elaborated below, we
have difficulty with that characterization of seniority.
- 35 -
In his final written submission, counsel for the Union takes strong exception to the
comparator group analysis adopted by the majority of the board in the Metropolitan General
Hospital case. He writes, in part:
Secondly, the Metropolitan General Hospital case is, in my respectful
submission, wrongly reasoned.
Human rights analysis in Canada does not proceed by way of seeking a
"similarly situated" group to the complainant group. The debate about which
comparator group - all employees or only those not at work - is the
appropriate comparator group before the complainants in this case is
premised on an equity analysis that has been rejected in Canada beginning
with Andrews ... and confirmed emphatically since that time.
In our view, the decision of the Board in the Metropolitan General Hospital case is
in stark contradiction to the position of the majority of the board chaired by Arbitrator
Burkett in the Re Metropolitan Toronto Reference Library Board decision. In that case, to
the grievor's claim that he was discriminated against because he was denied training made
available to other employees while he was absent by reason of a long-term disability, the
employer responded that with respect to the issue of equality of treatment under section 5
(1) of the Human Rights Code, the grievor was to be compared with other employees who
might have been absent for other reasons during the training period, and who were treated
no differently. As the board characterized the employer's argument:
The employer relies on the fact that Mr. Haley was absent from work at the
time of the technological change and asks us to find that in these
circumstances the group in respect of which he is entitled to equal treatment
under s.5(1) of the Human Rights Code is that comprised of persons absent
from work. In the absence of any evidence that Mr. Haley was treated
- 36 -
differently than anyone else on a long-term absence from work, we are asked
to find that although he lost an opportunity (to be trained) he was not
discriminated against in the sense that he was treated any differently than
those with whom he shared the same defining characteristic (i.e., long-term
absence from work).
The majority of the board in the Metropolitan Toronto Reference Library Board case
allowed the grievance, firstly, on the basis of the contractual right to training provided to
all full-time employees within the terms of the collective agreement, finding that the grievor
continued to retain his entitlement in that regard notwithstanding his extensive leave of
absence of some 33 months. The board then went on to rest its decision on the alternative
basis that the denial of training to the grievor was a denial of equal treatment as
contemplated under Section 5(1) of the Human Rights Code, by reason of his disability. In'
so doing, it concluded that the appropriate comparator group was not other employees
denied the benefit of training, but rather the general group of bargaining unit employees
who did receive the benefit. At pp. 169-71, Arbitrator Burkett reasoned and concluded as
follows:
This takes us to the question of whether Mr. Haley was denied "equal
treatment" within the meaning of s.5(1) of the Human Rights Code by reason
of being found not qualified under art. 20.02(b) in circumstances where he
was not given the same art. 24.01 training that others received during his
absence from work because of "handicap". The identification of the group to
whom Mr. Haley must properly relate in pushing his claim of unequal
treatment is a necessary first step in answering the broader question. The
employer, as we have recounted, argues that the appropriate group is that
comprised of those who would also have been absent from work on long-term
leave for whatever reason. Apart from the absence of any evidence that
anyone else was absent at the time or has been absent in the past when
training was being given under art. 24.01, we have a great deal of difficulty
with the employer's position. The question of whether, but for the handicap,
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a person would have received a benefit or entitlement (which is the
fundamental question in determining whether or not there has been
discrimination), can only be answered by reference to those who have
received the benefit or entitlement. If the reference group is comprised of
non-handicapped persons who have been denied the benefit or entitlement
(for non-proscribed reasons) there can never be a finding of discrimination
even though unequal treatment because of handicap may have occurred vis-h-
vis those who were at work, as the grievor would have been had it not been
for his "handicap". The Human Rights Code is designed to protect against the
loss of benefits or entitlements that would have been received but for the
"handicap". To compare the grievor to those not entitled to the benefit or
entitlement, for non-proscribed reasons, therefore, negates the protections
against "unequal treatment" contained in the Code.
We find support for this conclusion in the analysis of arbitrator S.L. Stewart
in Re Riverdale Hospital C.U.P.E., Loc. 79, supra, as follows [at pp.72-3]:
However, in determining whether there has been inequality of
treatment of Mr. Jovellanos in relation to his disability, it is
necessary to consider the appropriate comparator group. The
decisions in Re Canada Packers and in Re Toronto Hospital
address .this issue in the context of two clauses in the collective
agreement, providing for differing standards for discharge for
employees who have been absent for a specified period,
including employees who have been absent due a workers'
compensation injury, and those employees who are discharged
for other reasons. In Re Canada Packers, it was concluded that
the appropriate comparator group in determining whether there
has been unequal treatment of an employee who has been off
work as a result of a workers' compensation injury is the other
employees who are subject to the deemed termination clause.
This approach was rejected by the board in Re Toronto
Hospital, where it was concluded that the appropriate
comparator is the bargaining unit as a whole. Moreover, the
decision in Re Toronto Hospital expresses the view that this
conclusion is supported by the decision of the Divisional Court
in Stratford (City) v. C.U.P.E., Loc. 197 (April 19, 1991), supra,
and that the decision in Re Canada Packers is inconsistent with
that decision. At p.63 in Re Toronto Hospital, the board states
as follows:
'Whe essence of the decision in Re Stratford
(City) which was upheld by the Divisional Court
as being correct was that the protection provided
- 38 -
the grievor under s.4 of the Human Rights Code,
1981 was infringed because the automatic
termination provision denied him access to the
just cause provisions applicable to the employees
in the bargaining unit. Accordingly, we are
satisfied that the court endorsed the necessary
and implicit finding of the arbitrator that the
proper group for comparison in assessing whether
the grievor, as a handicapped person within the
meaning of the Code, had been afforded equal
treatment as the employees in the bargaining unit
as a whole and not simply the other employees
who are subject to the deemed termination
provision of the collective agreement. We adopt
these findings."
The board went on to a detailed consideration of the decision
in Canada Packers, At pp. 66-7 the decision states as follows:
'Whe board of arbitration in the instant matter
cannot adopt the reasoning of Re Canada
· Packers. First, as set out above, we are satisfied
that the Divisional Court decision in Stratford
(City) did endorse, as being correct, the finding
of the arbitration board in Re Stratford (City)
that the proper group for comparison, in
assessing whether the grievor, as a handicapped
person within the meaning of the Code, had been
afforded equal treatment, was the employees in
the bargaining, unit as a whole and simply the
other employees who were subject to the deemed
termination provision of the collective agreement.
Accordingly, we cannot adopt the view of the
majority of the board in Re Canada Packers [at
p.214] that a breach of the Code is avoided
because "the grievor in the instant case ... has
available to her all the arguments and arbitral
principles of review that are available to any
other employee to whom art. 12.5(d) may apply'".
Again, we are in agreement with Mr. Caley's submission that
the decision in Re Toronto Hospital is the better analysis and
that the appropriate comparator group is the bargaining unit as
a whole.
- 39 -
In accordance with this analysis, the issue to be determined is
whether Mr. Jovellanos has experienced unequal treatment in
relation to the members of the bargaining unit as a whole.
The award goes on to confirm its consistency with Re Board of Governors of
Riverdale Hospital and C.U.O.E. (June 6, 1990), unreported (O'Shea), which
found that even though the collective agreement provided for the reduction
of vacation pay because an employee worked fewer than a stipulated number
of hours, the employer could not rely on this clause where the employee had
been off work by reason of a compensable injury, and Re Ontario (Ministry
of Health) and O.P.S.E.U. (Martin) (May 13, 1993), unreported (reported 31
L.A.C. (4th) 129] (Dissanayake), where an employee was denied a position
because of his record of absenteeism including compensable injury absences.
The arbitrator found that even though the attendance policy applied to
everyone in the bargaining unit [at p.143], "... it is not neutral because it has
an adverse impact on a group protected by the Code, i.e., those who suffer
compensable injuries or disabilities". We need only repeat that for purposes
of determining whether an employee has been discriminated against under the
Human Rights Code the reference or comparator group must be those who
received the benefit or entitlement that has been denied so that it can be
determined whether, but for the handicap, the handicapped employee would
have received .the benefit or entitlement.
After substantial reflection, we are of the view that the approach of the board of
arbitration in the Metropolitan Toronto Reference Library case is to be preferred to that
found in the Metropolitan General Hospital award. In our view, to conclude that the
grievors have been accorded "equal treatment" in respect of their employment within the
meaning of Section 5.1 of the Code because they have suffered the same disentitlement to
the accrual of seniority experienced by other employees absent for a period in excess of 24
months is to fail to appreciate the purpose of the equal protection provision, as it relates
to a prohibited ground of discrimination. Furthermore, to the extent that Article 27.03D (ii)
can be characterized as a rule of general application embracing all employees who are
absent, it is plainly one which operates adversely against disabled employees, as compared
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to employees who are absent for reasons within their control, and as compared to able-
bodied employees who do not suffer absences from work. To that extent it would constitute
constructive discrimination contrary to Section 1 of the Human Rights Code.
With respect to the issue of constructive discrimination, we are bound by the decision
of the Divisional Court in the Etobicoke General Hospital (1993), 14 O.R. (4th) 40. In that
case, the Court reviewed the decision of Arbitrator Craven in Re Etobicoke General
Hospital and Ontario Nurses Association (1992), 25 L.A.C. (4th) 376. Arbitrator Craven
declined to find that the automatic termination of a nurse, after an absence from work for
a period of 24 months by reason of disability, was contrary to the Human Rights Code. In
so doing, he clearly departed from the approach taken by the boards of arbitration in
Glengarry lndustries/Chromalox Components and United Steelworkers, Local 6976 (1989),
3 L.A.C. (4th) 326 (Hinnegan) and Re Toronto Hospital and Ontario Nurses Association
(1992), 31 L.A.C. (4th) 44 (P.C. Picher).'Arbitrator Craven reasoned, in part, at pp.386-87:
... the determination of the griever's employment was not due to her handicap,
but rather to her absence due to illness or disability for 24 months. In this she
was treated the same way that the collective agreement contemplates treating
any employee who is absent due to illness or disability for 24 months.
The decision of the Divisional Court, quoted at page 12 of Arbitrator Gray's award
in the Stelco case struck down the decision of Arbitrator Craven, reasoning, in part, at
pp.43-4:
We incline to the view that the approach in Glengarry, supra, as affirmed in
Stratford, supra, is correct. However, even if we were prepared to assume the
arbitrator in the instant case was correct and a prima faeie case of direct
-41 -
employment discrimination had not been made out, we are of the view that
a prima facie case of employment discrimination has been made out based on
constructive discrimination provided for in s. 1 of the Human Rights Code. In
our view, even if cl. 8.03(g) can be properly viewed as a neutral provision
there can be no doubt that in the circumstances of this case, the clause has
adverse effects on employees because of their handicap and is accordingly
discriminatory for that reason: see Ontario (Human Rights Commission) v.
Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at p.550, 23 D.L.R. (4th) 321 at
p.332. In the circumstances whether cl. 8.03(g) is directly discriminatory or
constructively discriminatory, it was incumbent upon the arbitrator to apply
2.17 of the Code. His failure to do so constitutes serious error.
We conclude that the decision of the arbitrator in this case was patently
unreasonable. As has been stated the arbitrator erred in not finding the
application of d.8.03(g) resulted either in direct or constructive discrimination.
Once either form of discrimination is found, the arbitrator was bound to
consider whether the grievor could be accommodated within s.17 of the Code.
The arbitrator failed to engage in this inquiry but held that he would remain
seized of the case to deal with this issue at the request of either party. In our
view, the deCision of the arbitrator is patently unreasonable. He should have
found either direct or constructive discrimination and made a finding as to the
issue of accommodation within s.17 of the Code. He did none of these things
but rather found no discrimination while at the same time finding that an
accommodation hearing within s.17 was required. In the absence of a finding
of discrimination, there is no jurisdiction to conduct a s.17 hearing.
In the face of the foregoing authorities, we take it as settled law that the generality
of application of Article 27.03D (ii) is not a defence to the assertion that in its .specific
application it operates adversely against disabled employees, as it sets up an invidious
distinction, contrary to Section 1 of the Human Rights Code, as between able-bodied
employees who do not suffer extensive periods of absence from work, and those employees
who are absent from work for periods in excess of 24 months by reason of their disability,
a condition specifically protected by the Human Rights Code.
- 42 -
Secondly, with the greatest of respect, we feel compelled to follow a different course
than the board of arbitration in the Metropolitan General Hospital case with respect to the
treatment of seniority rights. Firstly, as reflected above, we accept the distinction, noted by
Arbitrator Brown in the Versa Services case, between rights to earned wages or benefits
based on attendance at work, which are not protected by the Code, and the more
fundamental rights of access to employment, which are so protected, a distinction implidtly
approved by the Divisional Court. Under most collective agreements, seniority is an
employee's pass-key to job security, a touchstone to vital job interests such as opportunities
for promotion, protection against layoff and rights of recall. (Tung-Sol of Canada Ltd.
(1964), 15 L.A.C. 161 (Reville)). If, as is well settled, an employee cannot suffer automatic
termination by reason of an extended absence from work because of a physical disability,
on what logical basis Can that same employee have his or her protection against eventual
layoff, or his or her recall rights, diminished by a reduction in seniority standing, caused only
by an absence from work occasioned by a physical disability protected by the Human Rights
Code.9 If an employee cannot be automatically discharged by reason of an absence caused
by illness or injury, we do not see how the consequences of an absence for a physical
disability can operate to reduce the same employee's relative seniority in relation to non-
disabled employees, pushing him or her closer to the head of the line in the event of a
future layoff or further back in the line which will regulate a recall to work. While it may
be that employees under the instant collective agreement who are absent for periods in
excess of 24 months for reasons other than disability may also see their access to
employment diminished by reason of the reduction of their relative seniority standing, there
- 43 -
is no unlawful discrimination against them, because they do not have the protected status
accorded to the disabled by the Human Rights Code. To the extent that Article 27.03 D(ii)
of the collective agreement may "discriminate" against them, as compared with employees
who are at work, it does so lawfully. That provision cannot, however, operate so as to visit
the same discrimination upon a disabled employee. Having regard to the principles
developed by the Supreme Court of Canada, as reflected in the Andrews case cited above,
we are compelled to conclude that although Article 27.03D (ii) appears to be of general
application, in its practical operation it results in adverse impact discrimination against
disabled employees.
We feel it important, however, to stress the limitations of our conclusions. In keeping
with the reasoning of the board of arbitration in the Versa Services award, we are satisfied
that the provisions of Sections 1 and 5(1) of the Ontario Human Rights Code prohibit the
College and the Union from fashioning a collective agreement provision which, as we have
found with respect to Article 27.03D (ii), reduces the vested job security interest of an
employee represented by his or her seniority standing. We are, therefore, satisfied that
Article 27.03D (ii) of the collective agreement cannot operate to reduce the relative
seniority of an employee, notwithstanding the length of his or her absence from work, where
the absence is for reasons of disability protected by the Code, to the extent that the
reduction in seniority would impact that employee's access to work or to work opportunities
under the collective agreement, including protections against layoff, rights of recall, access
to promotions and such other rights as may exist with respect to bidding or holding work
-44-
under the terms of the collective agreement. We do not, however, find that the Code would
protect against the application of Aa'tide 27.03D(ii) of the agreement so as to entitle the
employees who are the subject of this grievance to any wages, benefits or other advantages
which can only be gained, under the terms of the collective agreement, by attendance and
service at work.
For the foregoing reasons, the grievance is allowed, in part. The Board finds and
declares that Article 27.03D (ii) of the collective agreement is contrary to Sections 1 and
5(1) of the Ontario Human Rights Code, to the extent that it would reduce the seniority of
employees absent from work by reason of a disability specifically protected by the Code, to
the extent that such seniority rights may attach to the ability of the employees whether
presently, or in the future, to safeguard their access to work and work opportunities. This
matter is referred back to the parties for implementation. We remain seized in the event
of any dispute which may arise with respect to the interpretation or implementation of this
decision.
DATED at Toronto this 25th day of November, 1996.
I CONCUR. "John McManus"
Union Nominee
DISSENT ATrACHED. "Hugh John Cook"
College Nominee
- 45 -
DISSENT OF COLLEGE NOMINEE
The parties have signed a collective agreement Which provides under section 27.03
D (ii) that no employee shall continue to accrue seniority after an absence from work of
more than 24 months for reason of verified illness or injury and/or leave of absence, or on
a College approved secondment.
The majority of the board has found that this constitutes discrimination against some
employees because they are physically handicapped. The majority of the Board has chosen
to say that the comparator group for employees who are absent for more than 24 months
because of illness or injury, is those employees who are at work.
With respect, 'I believe that the majority of the Board has erred. The proper
comparator group for employees who are absent for more than 24 months because of illness
or injury, should be persons who are covered under section 27.03 D (ii) who are absent from
work for more than 24 months for reasons other than illness or injury. The parties have
agreed to treat all these employees in the same manner, but the decision of the majority
would result in treating employees absent from work for illness/injury better than other
employees covered under 27.03 D (ii), who are absent for reasons other than illness/injury.
In my opinion, this will create discrimination where previously none existed.
The majority has found that these employees are entitled to access to promotion
while absent for more than 24 months for reasons of disability. Does this mean that, upon
their return to work, they are entitled to grieve any promotion that has taken place during
- 46 -
their absence, for which they can argue that they were better qualified and possessed more
seniority?
The majority has also found that these employees are not entitled to "any wages,
benefits or other advantages which can only be gained, under the terms of the collective
agreement, by attendance at work". I respectfully submit that it is not self evident why these
employees are entitled to some benefits and not others, or which benefits should be
awarded, if 27.03 D (ii) is contrary to the Human Rights Code.
There is a further point that should be mentioned. The local union has chosen to
challenge an agreement reached between its own representatives and the Council of
Regents, by going t°. binding arbitration. If there had been an individual who was
disadvantaged by the provision to which they object, this might have been justifiable, but
there is not, nor is there likely to be. This is an arrogant and irresponsible waste of their
own and the public resources, which could have been avoided by removing this clause by
mutual agreement at the next negotiations.
I would have dismissed the grievance.
"Hugh John Cook"
College Nominee