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HomeMy WebLinkAboutHarasemchuk 04-01-17 .. IN THE MATTER OF AN ARBITRATION BETWEEN: Kenora Association for 'Community Living (The Employer) - and - Ontario Public Service Employees Union, Local 702 (The Union) Grievances of Angela Harasemchuk Union Policy Grievance BEFORE: R. Jack Roberts, Arbitrator FOR THE UNION: Jim Gilbert District Grievance Officer FOR THE EMPLOYER: Frederick J. W. Bickford Counsel HEARINGS: Kenora, Ontario December 18, 2002 October 6 & 7, 2003 1 A WARD I. Introduction: On May 23, 2003, I issued ~ interim award in the matter in which I concluded that I had . . jurisdiction under the collective agreement to determine whether the eligibility requirements of the pension plan adopted by the employer discriminated against the grievor on the basis of her sex or family status. I deferred consideration of the question whether s. 48(12)0) of the Ontario Labour Relations Act, 1995, also conferred upon me original jurisdiction to interpret and apply human rights and other employment-related statutes pending a decision by the Supreme Court of Canada on the issue in District of Parry Sound Social Services Administration Board and OP.SoE. U, Local 324. The reasons for judgment of the Court subsequently issued in 2000 SCC 42 (Sept. 18,2003) and left no doubt that arbitrators in Ontario possess this jurisdiction. As a result, when we reconvened for a hearing on the merits on October 6 & 7, 2003, the parties were permitted to make submissions to me under the collective agreement and both the Ontario Human Rights Code and the Ontario Employment Standards Act, 2000. In addition, counsel for the employer, Mr. Bickford, sought at the outset of the hearing to correct a misimpression that appeared in the interim award. Whereas the interim award concluded that the pension plan was not incorporated into the collective agreement on the basis of the wording of the pension plan provision, article 17.03 of the collective agreement, and drew an inference therefrom that the parties intended the insurer to determine eligibility for coverage and benefits, further investigation by. counsel indicated that by contractual arrangement between . 2 the insurer and the employer, the latter was to act as ~e agent of the insurer in determining, inter alia, eligibility for participation in the plan. In the light of this information the representative of the union, Mr. Gilbert, submitted that the prior determination on lack of incorporation of the pension plan ought to be revisited. I decline, however to do so. First, such a determination is unnecessary. It would not add to the jurisdiction over the merits that I have already found that I possess. Second, there was no acknowledgement in article 17.03 nor any indication in the evidence that when the pension plan provision of the collective agreement was negotiated between the parties, the union was aware that the employer would, by contract with the insurer, have this agency. I will now turn to the merits of the case: II. Factual Background: The facts leading to the present arbitration were set forth in detail in the interim award of May 23, 2003, and will not be rehearsed here. It suffices to say that because of a pregnancy and parental leave that the grievor took in 2001, the employer as agent of the insurer, Sun Life, detennined that she was ineligible to participate in the pension plan. This led the union and the grievor to file grievances against the employer on May 15,2002. They claimed that in failing properly to decide eligibility and make contributions to the plan, the employer was breaching the non-discrimination provisions of article 3 of the collective agreement, the Ontario Human Rights Code and the Ontario Employment Standards Act. As indicated, I have found that I have . 3 jurisdiction of the merits under all three of these heads of the union's and grievor's complaints. The eligibility requirements of the Group Pension Contract that the employer had with . Sun Life provided, in pertinent part, as follows:. 2.03 Eligibility requirements in respect of an Employee who is in service on a continuous but less than full-time basis are that such Employee shall (a) have completed 24 mqnths of continuous service, and (b) have earned at least 35% of the Year's Maximum Pensiona1?le Earnings, or completed 700 hours of employment in each of the two consecutive calendar years immediately prior to membership in the Plan. .. .. As can be seen, s. 2.O3(b), above, requires an employee with 24 months of continuous service to satisfy either of two alternative criteria for eligibility: the employee must have (1) earned 35% or more of his or her maximum pensionable earnings, or (2) completed 700 hours of employment, in each of two consecutive calendar years. In May, 2002, shortly before the grievances were filed, the employer advised the grievor that she was not eligible to participate in the pension plan because she could not meet either one of the eligibility requirements ofs. 2.03(b), above. The employer explained that in calendar year 2000, the year that the grievor commenced her regular part-time employment, she met both of the alternative cri~eria set forth in s. 2.03(b); however, in the next year, 2001, she did not meet either. Due to her pregnancy and parental leaves, which extended from January 19,2001 to past the end of the year, she neithe! earned at least 35% of her maximum pensionable earnings nor 4 completed 700 hours of active employment. Since s. 2.03(b) required either one of its criteria to be satisfied in two consecutive years, i.e., 2000 and 2001, the' employer said, the grievor was ineligible to participate and could not require thé employer to commence make pension : contributions on her behalf. III. The Issues Raised by the Parties: Thesubmissions of the parties focused upon the requirement in s. 2.O3(b) of the group pension contract for the completion of "700 hours of employment" in each ofthe two consecutive calendar years immediately preceding membership in the pension plan. The issues raised concerning the 700-hour requirement were as follows: (1) Whether the requirement breached the non-discrimination provisions of the collective agreement and the Human Rights Code when it was applied to a woman who was absent on unpaid pregnancy and parental leave during one of the calendar years in question; and, (2) Whether the requirement, as interpreted and applied by the employer, breached the pregnancy, parental and emergency leave provisions of Part XIV of the Employment Standards Act. I will deal with these issues seriatim hereinbelow: IV. Consideration of the Issues: (1) The alleged breach of the non-discrimination provisions of the collective agreement and the Hu~an Rights Code: The provisions of the Human Rights Code that bear most directly upon this issue are as .. 5 follows: 5.(1) Employment -- Every person has a right to equal treatment with respect to employment without discrimination because of. . . sex, ... marital status, . . . family status or disability. 11 (1) Const~uctive Discrimination -- a right of a person under Part I [Freedom from Discrimination] is infringed where a requirement,- qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified. by a prohibited ground of discrimination and of whom a person is a member, except where, (a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or, (b) it is dec1aredin this Act, other than in s. 17 [Disability & Accommodation], that to discriminate because of such ground is not an infringement of a right. . . . . The union indicated in its submissions that s. 25(1) of the Code might also be relevant, but it does not appear to apply to the facts of this case. 1 It addresses the opposite situation to the one at hand, where membership in a pension or group insurance plan is made a prerequisite to employment. It does not deal with our situation, where active employment for a derIDed period of time was made a prerequisite to membership in a pension plan. . 1 Section 25(1) of the Code reads as follows: 25(1) Employment conditional on membership in pension plan -- The right under section 5 to equal treatment with respect to employment is infr~ged where employment is denied or made conditional because a term or condition of employment requires enrolment in an employee benefit, pension or superannuation plan or fund or contract of group insurance between an insurer and an emp10yer, that makes a distinction, preference or exclusion on a prohibited ground of discrimination. . 6 Considering the above provisions of the Code and the law developed. thereunder, I have no hesitancy in rIDding that there was no breach öfthe Human Rights Code and, ergo, the non- discrimination provisions of article 3.01 of the collective agreement in the present case. I accept the position of the employer that eligIbility to participate in the pension plan was an "earned benefit," in the sense that existing human rights jurisprudence has recognized that an employer's contribution to premiums for the pension of an employee constituted an element of compensation that had to be earned by being in active employment. Since the grievor was not in active employment during her pregnancy and parental leaves, the Human Rights Code did not require the hours that she spent on these unpaid leaves to be counted toward eligibility to participate in the pension plan. See Ontario Nurses' Association v. Orillia Soldiers Memorial Hospital (1999), 42 O.R.(3d) 692 (Ont. C.A.); Re Versa Services Ltd and Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees Union, Local 647 (1994), 39 LA.C. (4th) 196 (R. M. Brown). The grievor was treated no differently than other employees on unpaid leaves of absence. There seems to be little doubt that for most human rights purposes such employees made up the relevant comparator groUp.2 Without taking in~o account the hours spent on the grievor's unpaid leaves in 2001, she did not meet the 700-hour requirement for 2001 and, as far as human rights jurisprudence is concerned, would have been ineligible to participate in the pension plan at the time of her grievance in 2002. The landmark decision of the Supreme Court of Cariada in Brooks v. Canada Safeway, 2 See the discussIon of the Brooks case, infrao 7 [1989] S.C.R. 1219, upon which the union heavily relied, made only a minor impact upon this aspect of human rights law. While Brooks recognized that a distinction based on pregnancy was not only between employees who were pregnant and those who were not~ but also sex discrimination because only women could get pregnant, it did not erase entirely the legitimacy of using other employees on unpaid leave as a comparator group for human righ~s purposes. So, for example, in Re Glen Haven Manor and Canadian Union of Public Employees, Local 2330 (1991), 19 L.A.Co(4th) 61 (Nova Scotia, P.Eo Darby), the proration of the vacation benefit of an employee who took unpaid pregnancy leave was upheld because she was treated no differently than other employees who to~k unpaid leaves of absence. See id., at 71-2. In fact, humarlrights jurisprudence subsequent to Brooks seem to have limited its scope to some of its specific facts, i.e., the denial of sickness or disability benefits to women on pregnancy and parental leave for the period of time in which they were unable to work due to pregnancy-related complications or childbirth. Only this his has been determined to be discrimination on the basis of sex. See, e.g., some cases that recently came to my attention: Ontario Cancer Treatment and Research Foundation (1998), 38 O.R.(3d) 72 (Ont. Gen Div.); and, Oos.S.T.F., District 34 v. Essex County Board of Education (1998), 164 D.L.R. (4th) 455 (Ont. C. A.) (rev'g on grounds other than application of Brooks), leave to appeal dismissed by S.C.C., S.C. Bulletin, 1999, at 384. See also, Re Hamilton-Wentworth District School Board (2000),89 L.A.C. (4th) 194 (Springate); Re o.Ec.T.A. and Du.fferin-Peel Roman Catholic Separate School Board (1998),80 L.A.C.(4th) 149 (Samuels), Supp. Awd. (1999), 85 L.A.C.(4th) 21; and, Wighl v. Ontario (Office of the Legislative Assembly) (1998),33 C.H.R.R. D/191 (Ont. Bd. Inq.). ,. 8 In the present case, the facts do not show that while the grievor was on 'pregnancy and parental leave in 2001, she was denied sickness or disability benefits for the period of time in which she was unable to work due to pregnancy-related complications or childbirth. That was not the gist of the grievance. In essence, the grievor's human rights and collective agreement claims were that the employer breached the Human Rights Code when it declined to include in its calculation of eligibility for the pension plan any credit for the time that she spent on pregnancy and parental leave in 2001. I have found that this was not a breach of the Human rights Code and, as a result, the grievor's claims under these heads of complaint are dismissed. (2) The alleged breach of the pregnancy, parental and emergency leave provisions of Part XIV ofthe Employment Standards Act: The opposite result, however, must be reached under the pregnancy, parental and special leave provisions of Part XIV of the Employment Standards Act. These provisions read, in pertinent part, as follows: 51 (1) Rights during leave -- During any leave under this Part, an employee continues to participate in each type of benefit plan des~ribed.in subsection (2) that is related to his or her employment unless he or she elects in writing not to do so. (2) Benefit plans -- Subsection (1) applies with respect to pension plans, life insurance plans, accidental death plans, extended health plans, dental plans and any prescribed type of benefit plan. . . (3) Employer contributions -- During an employee's leave under this Part, the employer shall continue to make the employer's'contributions for any plan described in subsection (2) unless the employee gives the employer a written notice that the employee does not intend to pay the employee's contributions, if . . 9 any.... . 52(1) Length of employment -- The period of an employee's leave under this Part shall be included in calculating any of the following for the purpose of determining his or her rights under an employment contract: 1. The length of his or her employment, whether or not it is active employment. 2. The length of the .employee's service whether or not that service is active. 3. The employee's seniority. . . . . When applied in aprimafacie manner, s. 52(1) of the Act, above, would seem to require the employer herein to count toward the grievor's 700-hour pension eligibility threshold for 2001, the hours of work that she missed while on pregnancy and parental leave in that year and deem her to be eligible to participate in the pension plan when she crossed this threshold. Section 52(1)(1) of the Act, above, expressly required the period' of an employee's pregnancy, parental or emergency leave to be included in calculating his or her rights under an employment contract even though it was not a period of active employment. One of the rights of the grievor under the employment contract in the present case, i.e., the aggregatè of the collective agreement, the pension plan and the employer's agency agreement with the insurer, was the right to .participate in the pension plan. It was subITÙtted on behalf of the employer, however, that it would be inappropriate to make a prima facie application of s. 51 (1)(1) of the Act and reach such a conclusion because it would violate the basic principle that "ecimed benefits" had to earned in active employment. . :. .. 10 Primary reliance was placed upon two Employment Standards cases: Re City of Sault Ste. Marie, [1994] O.E.S.A.D. No. 112 (T. Wacyk); and, Re Society of Chatham (coo.b. Public . . General Hospital), [1997] O.E.S.A.D. No. 299 (L.' Bradbury). In Sault Ste. Marie., the Referee concluded that the Act did not require vacation credits to be accrued during pregnancy and ., parental leave. In Chatham, the Referee rejected a submission that s. 42(4) of the Act, which was a predecessor to s. 52(1), above, and which stated that II [s]eniority continues to accrue during pregnancy leave or parental leave, II meant that both seniority and service accrued during the leave. The Referee applied an II earned benefit" analysis to the submission and held that because this would be tantamount to deeming the employee to have been actively at work throughout the leave, it was an interpretation that s. 42(4) could not reasonably bear. ¡d., at para. 13. It seems to me, however, that the above cases are of little utility in interpreting and applying ss. 51 and 52, above, which are among the current versions of the leave of absence provisions of the Act. It. is my understanding that s. 52, in particular, was inserted into these provisions to overcome the prior "earned benefit II interpretations ofs. 42(4) and specifically require employers to include in the determination of length of employment, length of service, and seniority the hours that would have been worked during periods of pregnancy, parental and emergency leaves. These amendments came into force on December 1, 1996. From that point on, it seems to me, the prior "earned benefit" jurisprudence under s. 42(4) essentially became . inapplicable. No jurisprudence under the above amendments was cited to me by either the employer or . . . ' . 11 the union, and in the absence of any jurisprudence to the contrary I am left with no choice but to apply the prima facie meaning of s. 52(1) of the Act. Accordinglý, I fmd that in determining eligibility for pension benefits under the collective agreement the employer was required by s. 52(1)(1) to treat as part of the grievor's period of employment the hours of work that she missed . . due to her pregnancy and parental leaves in 2001. If these hours would have added up to more than 700 hours, which in all likelihood they did, the grievor would have been eligible for the pension plan when she requested to become a member in May, 2002. The Group Pension Contract with Sun Life did not necessarily call for a different result. . When applied to the grievor, all that s. 2.03(b) of the contract required was that the grievor have completed 700 hours of "employment" in 2001. While the employer might legitimately have generally interpreted this to mean "active employment" before the date that s. 52(1) of the Act came Ìnto force, December 1, 1996, it could not do so thereafter without running afoul of s. 52(1). In cases of pregnancy, parental and emergency leave, this provision effectively made the prior interpretation of so 2.03(b) unenforceable as an unlawful attempt to contract out of the Employment Standards Act. From December 1, 1996 onward, the only lawful interpretation that s. 2.03 of the contract could bear would have been that for purposes of calculating entitlement to participate in the pension plan, "employment" included periods of inactive employment during pregnancy, parental and emergency leaves. This brings me to consideration of the effect of s. 51 of the Act, above, which also was an amendment that came into force on December 1, 1996. It would seem appropriate to comment > .:' . 12 upon this for purposes of guidance to the parties because the agreed statement of facts in the . matter stipulated that on December 20, 2002, the grievor once again took pregnancy and parental leave and was not scheduled to return to work until December 22, 2003. Assuming arguendo that the grievor must be treated as haVing become a member ofilie pension plan as of the time . . she made her request for membership in May, 2002, this raises the question whether. the employer was obligated to continue making its contributions to the pension plan on the grievor's behalf during her December, 2002 to December, 2003, leaves. Having regard to the wording of s. 51 of the Act the answer would appear to be, yes. Under ss. 51 (1) & (2), employees on pregnancy, parental or emergency leave have the right to continue to participate in pension plans, life insurance plans, accidental death plans, extended health plans and dental plans during their leaves. Under s. 52(3), the employer must continue to make its contributions on behalf of employees for these benefit plans while they are on such leaves. In the course of the hearing, a question was raised as to how the employer was to calculate the amount of its contribution to the pension plan of an employee on pregnancy, parental or emergency leave since these were unpaid leaves of absence and the employer's contribution Was cast in the form of a percentage of wages earned by the employee. I did not receive any submissions upon this question and, as a result, I am unable to render a balanced opinion in the matter. For purposes of guidance only, however, I would refer the parties to the Employment Standards Act, 2000 Policy & Interpretation Manual (Carswell), which indicates ,'" ,'.; , 13 . . that it is the policy of the Employment Standards Branch of the Ministry of Labour in these circumstances to require the employer contribution to continue to be made'as if the employee remained at work during her leave. The wage rate to be attributed to the employee would generally be the wage rate received prior to going on leave. See id., at s. 18.8.3, Contribution Calculations. V. Conclusion: The heads of complaint under the non-discrimination provisions of article 3.01 of the . . collective agreement and the Human Rights code are dismissed. The head of complaint under the Employment Standards Act is allowed. The matter is remitted to the parties in this posture for determination of a remedy that is not inconsistent with this award. I will retain jurisdiction pending this determination. Dated at Toronto, Ontario, this 17th day of January, 2004.