HomeMy WebLinkAbout1995-0725.Donoghue.02-12-03 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
~-,...
Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tel. (416) 326-1388
Fax (416) 326-1396 Telec. (416) 326-1396
GSB# 0725/95
UNION# 95C913
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Donoghue) Grievor
- and -
The Crown In RIght of Ontano
(Mimstry of TransportatIOn) Employer
BEFORE Richard Brown Vice-Chair
FOR THE UNION RobIn Gordon
Gnevance Officer
Ontano PublIc ServIce Employees Umon
FOR THE EMPLOYER Kelly Burke
Semor Counsel
Management Board Secretanat
HEARING October 4 & November 25 2002
2
DECISION
Stephen Donoghue claims he has been dIscnmmated agamst on the ground of
dIsabIlIty, because neIther Ius Long Term Income ProtectIOn (L TIP) benefits nor the
penSIOn contributIOns made by Ius employer have been mcreased to reflect a raise m
salary whIch came mto effect after he was dIsabled.
II
Mr Donoghue began workmg for the MmIstry of TransportatIOn m June of 1965 He
held the posItIOn of TechnICIan 1 ConstructIOn when dIsabled. Mr Donoghue
commenced receIvmg L TIP benefits m July of 1987 and dId not return to work before
retInng approxImately nIne years later After he left actIve employment, Ius fonner
posItIOn was reclassIfied and renamed SenIor TechnICIan TransportatIOn ConstructIOn
The reclassIficatIOn led to a salary mcrease of nme per cent effectIve after he departed
the Job The facts are set out m greater detail m the followmg agreed statement
1 The gnevor, Stephen Donoghue, began hIS employment wIth the MinIstry of
TransportatIOn on June 28, 1965
2 Mr Donoghue was approved to receIve L TIP benefits effectIve July 16, 1987
As of that date, Mr Donoghue was m receIpt of L TIP benefits
3 Immediately pnor to hIS absence on L TIP the gnevor was employed m the
TechnIcian 1 ConstructIOn (TIC) classIficatIOn
4 Mr Donoghue's L TIP benefits were calculated accordmg to the employee's
gross salary at the date of dIsabIlIty m accordance wIth artIcle 42 2 1 the
collectIve agreement HIS gross salary at the tune was $28,872
5 On vanous dates between January 28, 1988 and June 1988, many employees
workmg m the TIC classIficatIOn filed gnevances claunmg the posItIOn was
mappropnately classIfied. Mr Donoghue was not among the gnevors The
gnevances were consolIdated by the partIes
3
6 The GSB Issued a decIsIOn m relatIOn to these gnevances It IS known as
McCauley and Truchon et al dated January 22, 1990 The Board ordered the
employer to reclassIfy the gnevors and to develop a new class standard for the
TIC classIficatIOn
7 Pursuant to the McCauley Truchon decIsIOn, the TIC became Semor
TechmcIan, TransportatIOn ConstnlctIOn (STTC) and the 20 day nlle was
apphed wIth respect to retroactIvIty and mterest
8 The Issue of salary to be paid to the new classIficatIOn was determmed by an
mterest arbItratIOn award. The arbItratIOn panel, chaired by Howard D Brown,
awarded all steps of the S TTC classIficatIOn a 9% mcrease retroactIve to
January 9, 1991
9 The partIes entered a Memorandum of Settlement dated August 24, 1994
wherem the employer agreed to compensate each gnevor wIth full retroactIvIty
(retroactIve calculatIOns provIded m the award) to twenty days pnor to each
mdIvIdual gnevance date, save and except where Management had commItted
m wntmg that an employee would be treated as an exceptIOn to the "twenty
day nlle"
10 By letter dated February 14, 1990, the employer confirmed that the McCauley
and Truchon decIsIOn apphed to all non-gnevors m the affected classIficatIOn
retroactIve to twenty days pnor to the date on whIch the award was receIved
(January 22, 1990) Accordmgly, the effectIve date of the reclassIficatIOn to
the STTC for non-gnevors became December 20, 1989
11 Mr Donoghue dId not return to work untIl hIS retIrement on June 30, 1996
II
The umon contends the employer's treatment of the gnevor contravenes the Ontarzo
Human Rlghts Code and the dIscnmmatIOn clause m the collectIve agreement As the
prohibItIon agamst dIscnmmatIOn m the Code IS at least as broad as the one m the
agreement, I need consIder only the statute The partIes agree Mr Donoghue has a
"handIcap" wItllln the meanmg of the Code I was referred to the followmg sectIOns
deahng wIth dIscnmmatIOn on the ground of handIcap
4
5 (1) Every person has a nght to equal treatment wIth respect to employment
wIthout dISCnmInatIOn because of handIcap
11 (1) A nght of a person under Part I IS Infnnged where a reqUIrement,
quahficatIOn or factor eXIsts that IS not dISCnmInatIOn on a prohibIted ground but
that results In the exclusIOn, restnctIOn or preference of a group of persons who
are IdentIfied by a prolubIted ground of dISCnmInatIOn and of whom the person IS
a member, except where,
(a) the reqUIrement, quahficatIOn or factor IS reasonable and bona fide In the
cIrcumstances, or
(b) It IS declared In tlus Act, other than In sectIOn 17, that to dISCnmInate because
of such ground IS not an Infnngement of the nght
(2) The CommIssIOn, a board of InqUIry or a court shall not find that a
reqUIrement, quahficatIOn or factor IS reasonable and bona fide In the
CIrcumstances unless It IS satIsfied the needs of the group of whIch the person IS a
member cannot be accommodated wIthout undue hardshIp on the person
responsible for accommodatIng those needs, consIdenng the cost, outsIde sources
of fundIng, If any, and health and safety reqUIrements, If any
III
I begIn my analysIs by notIng the gnevor's complaInt IS about two forms of
remuneratIOn L TIP benefits and penSIOn HIS complaInt IS not about beIng demed
access to employment In general or to a partIcular Job In other words, the Issue
concerns compensatIOn not partIcIpatIOn In the world of work.
The apphcatIOn of the Code to matters of compensatIOn was consIdered by the
Court of Appeal In OntarlO Nurses' AssoczatlOn v OrzUza Soldlers Memorzal Hmpltal
(1999), 169 D.L.R. (4th) 489 The employer In that case paid the full premmm for
health and welfare benefits provIded to actIve employees For the first thIrty months
that dIsabled nurses were absent from work and In receIpt of long-term dIsabIhty
benefits, the hospItal contInued to pay the full cost of provIdIng such benefits,
thereafter, the employer made no contributIOn to health and welfare premmms The
5
OntarIO Nurses' AssOcIatIOn (aNA) argued thIS dIfferentIal treatment contravened the
Code
Holdmg there was no dIrect dIscnmmatIOn, Mr JustIce Rosenberg wrote on
behalf of the Court
DIsabled nurses do not receIve compensatIOn because they are not provIdmg
servIces to theIr employer It IS not prohIbIted dIscnmmatIOn to dIstmgUIsh for
purposes of compensatIOn between employees who are provIdmg serVIces and
those who are not
In the case presently before the court, the purpose of the employer
contributIOns to benefit plans IS to provIde an addItIonal form of compensatIOn m
exchange for work. Havmg chosen to provIde tlllS form of compensatIOn, the
employer could not dIscnmmate on a prohibIted basIs However, the employer
could dlstzngUlsh based on the reason for provldzng the compensatlOn work. On
ltS face, dlscrzmznatlOn would eXlst if the employer provlded different levels of
compensatlOn for work because of handlcap LlkeWlse, It would constltute
dlscrzmznatlOn if the employer provlded different levels of compensatlOn for not
workzng because of handlcap But, zn th,s context It makes no sense to compare
workzng employees wlth those not workzng
I also do not find It helpful to attempt to Isolate dIfferent elements of the
compensatIOn package such as employer contributIOns to premmms, vacatIOn
pay, and wages and ascnbe dIfferent purposes to each so as to create a
dIscnmmatIOn argument They are all part of the compensatIOn package
negotIated by the partIes m exchange for work by the employees When the
employee IS not workmg, dIfferent consIderatIOns and dIfferent fonns of payment
may apply For mstance, employees may receIve workers' compensatIOn or long-
term dIsabIlIty payments
Leavmg aSIde the dIfference between employees on workers'
compensatIOn and those on long-term dIsabIlIty, whIch IS not properly before thIS
court, the benefits provIded to handIcapped employees not provIdmg work are
more generous than to other employees not provIdmg work. Therefore, there IS
no dIscnmmatIOn on a prohibIted basIs wItllln the meanmg of s 5( 1) of the Code
(pages 502 to 504)
Turnmg to mdIrect or constnlctIve dIscnmmatIOn, governed by sectIOn 11 (1) of
the Code, Mr JustIce Rosenberg wrote
In my VIew, It IS possIble to find that a neutral rule m tlllS case has a
dIscnmmatory effect wIthm the meanmg of s 11 (1) To repeat, the neutral rule
may be stated as follows the employer
6
contributes toward premmm coverage of partIcIpatIng ehgIble nurses In the
actIve employ of the hospItal ThIS rule has the effect of reqUInng the group of
employees IdentIfied by the prohibIted ground of dISCnmInatIOn to assume the
burden of paYIng the entIre contributIOns for these benefits If they wIsh to
maIntaIn coverage Admlttedly, these employees are treated no differently than
other employees on unpazd leave of absence, the dffference lS that these
employees are adversely effected by the rule because of thelr dlsabllzty The lssue
then lS whether the employers are entltled to the BFOQ [l e bonafide
occupatwnal requlrement] Justificatwn Tn 51 11 (1) (b) [actually 51 11 (1) (a)J In
my Vlew, they are I reach thIS conclusIOn not because of the dIstInctIOn drawn In
Versa SerVlces between compensatIOn and partIcIpatIOn, but rather by havIng
regard to the nature of the accommodatIOn reqUIred for thIS kInd of constnlctIve
dISCnmInatIOn
An example may assIst In understandIng the problem Assume that an
employer changes from paYIng ItS employees wages based on hours worked to
paYIng on the basIs of the number of pIeces produced. Assume further that the
dIsabled employees are sImply unable to produce as many pIeces as able-bodIed
employees and as a result theIr wages are reduced. Arguably, tlllS constItutes
constructIve dISCnmInatIOn The facially neutral standard of paYIng by the
number of pIeces produced results In a restnctIOn on the abIhty of the dIsabled
employees to earn the same wages as able-bodIed employees In accordance wIth
s 11 (1 )( a), the employer could JustIfy the dIfferent result by shoWIng that tlllS
standard was reasonable and bonafide In the CIrcumstances However, In
accordance wIth s 11(2), the board of InqUIry or a court IS only entItled to find
that the standard IS reasonable and bonafide If It IS satIsfied the needs of the
group cannot be accommodated wIthout undue hardshIp consIdenng the "cost,
outsIde sources of fundIng, If any, and health and safety reqUIrements, If any"
Nevertheless, I do not read s 11(2) as nnpOSIng upon the employer the burden of
sImply tOppIng up the wages of the dIsabled employees That, In my VIew, IS not
the type of accommodatIOn contemplated by s 11(2) and IS In fact InImICal to the
prIncIples underlYIng the Code
SImply tOppIng up the wages of the dIsabled employees and paYIng them
as If they are not dIsabled IS notlllng more than reverse stereotypIng Rather, It
would seem to me that the employer In thIS hypothetIcal must attempt to
accommodate the group For example, the employer may provIde devIces and
Instruments that would allow the dIsabled employees to perform at the same level
as the able bodIed employees The duty IS on the employer to take all steps short
of undue hardshIp to accommodate the need of the person dIscnmInated agaInst
so that they can compete equally wIth the other employees It IS by attemptIng to
accommodate theIr actual charactenstIcs so as to bnng them wIthIn the
workplace enVIromnent that the employer comphes wIth the Code
7
It may be that thIS goal cannot be fully accomphshed and that short of
undue hardshIp the employer, for example, can provIde technIcal aids that wIll
only partly bnng the dIsabled employees to the same level as the able-bodIed
employees However, m my VIew, that IS all the Code reqUIres the employer to
do The employer IS not reqUIred to abandon the standard (assummg It to be a
BFOQ) and pay the dIsabled employees accordmg to some dIfferent standard.
ObvIOusly, It may do so voluntanly, but tlllS IS not what the Code reqUIres
The appellant m thIS case does not seek any reasonable accommodatIOn or
modIficatIOn of the rule for the actual charactenstIcs of ItS dIsabled members
Assummg the nlle respectmg employer contributIOns to benefit plans
constItutes constructIve dIscnmmatIOn, I am satIsfied that the JustIficatIOn m s
11(1 )(b) [actually s 11(1 )(a)] apphes ReqUlrzng work zn exchange for
compensatzon lS a reasonable and bonafide requlrement (page 512 and 515,
emphasIs added)
In thIS passage, the Court of Appeal dIsagreed, to some extent, wIth the decIsIOn
m Versa Servlces Ltd. and Mzlk and Bread Drzvers, Dazry Employees, Caterers and
Allled Employees Unzon (1994), 39 L.A.C (4th) 398 As my decIsIOn m Versa Servlces
was upheld by the DIvIsIOnal Court and then followed by most arbItrators subsequently
grapphng wIth mdIrect dIscnmmatIOn m compensatIOn, It IS Important to understand
precIsely how the law as stated m Versa Servlces has been changed by the Court of
Appeal I described the extent of that change m Canadzan Bank Note Company and
Graphlc Communzcatzons Unzon, decIsIOn dated September 8, 1999
The Court's reasonmg m Orzllza Soldlers was anImated by the same fundamental
premIse artIculated m my decIsIOn m Venw Servlces--I e that compensatIOn IS
paid for work. ThIS qUld pro quo explams why the Code does not reqUIre an
employer to pay employees unable to work because of handIcap, so long as the
employer does not pay employees absent for other reasons for pen ods of the
same duratIOn In Versa Servlces, I wrote
Are employees on L TD benefits bemg denIed equal treatment wItllln the
meanIng of the Code? They are bemg treated m a less advantageous
manner than employees on the job for whom the company contributes
towards the cost of benefits However, actIve employees are performmg
servIces m exchange for tlllS benefit contnbutIOn, whereas those on L TD
are not workmg L TD benefits do not commence untIl an employee has
been off the job for more than a year and contmue untIl an employee IS
8
able to work agam 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 a penod of sImIlar duratIOn In the
absence of such eVIdence, I cannot find handIcapped employees collectmg
L TD benefits are bemg 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 tlllS type of equal treatment IS all the Code reqUIres, there
would be no vIOlatIOn
The case at hand IS not about modIfymg Jobs so they can be
performed by dIsabled people It IS not about entenng or leavmg the world
of work. The handIcaps afflIctmg employees on L TD benefits are
sufficIently senous that they are unable to work for more than a year The
umon contends the employer IS obhged 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 workmg, rather
than partIcIpatIOn m the world of work. Accordmg to the umon, the Code
compels the employer to bear the cost of provIdmg benefits to these
employees, even though benefits are not provIded to able-bodIed
employees who are absent from work for such a prolonged penod. Does
equal treatment reqUIre not only accommodatIve measures to allow people
to work, but also special payments for those unable to do so? I thmk not
I have concluded the Code does not reqUIre employers to adopt
special compensatIOn measures for people wIth dIsabIhtIes (pages 201 to
204)
By saymg my award m Versa SerVlces and Court of Appeal's Judgement m
Orzllza Soldlers rest upon the same prmcIple of qUld pro quo, I do not mean to
suggest there IS no dIfference between them There IS a dIstmctIOn on a less
fundamental level I held the notIon of mdIrect dIscnmmatIOn embodIed m
sectIOn 11 (1) of the (1ode apphed only to partIcIpatIOn and not to compensatIOn
The Court of Appeal dIsagreed on thIS pomt, ruhng that sectIOn 11 (1) does apply
to compensatIOn However, the Court went on to say sectIOn 11(1 )(a) excuses an
employer from adoptmg specIal compensatory measures to overcome mdIrect
dIscnmmatIOn
The dIfference between these two hnes of reasomng IS a subtle one wIth
hmIted practIcal sIgmficance It would not affect the outcome m a broad range of
cases, mcludmg not only Orzllza Soldlers and Versa Servlces, but also all or most
of the cases whIch I revIewed m "Human RIghts m Employment Of
9
PartIcIpatIOn and CompensatIOn" (1997), 4 (>anadzan Labour and Employment
Law Journal 283 On my approach, the facts In Orzllza Soldlers and Versa
Servlces dIsclose no vIOlatIOn because IndIrect dISCnmInatIOn In compensatIOn IS
not unlawful On the Court's approach, these are przmafacle cases of unlawful
IndIrect dISCnmInatIOn, but there IS no vIOlatIOn because an employer IS not
reqUIred to top-up compensatIOn
The two approaches would produce dIfferent outcomes In the Court's
hypothetIcal sItuatIOn InvolVIng pIece work. On these facts, the Court's reasonIng
leads to a findIng of IndIrect dISCnmInatIOn and, therefore, reqUIres the employer
to modIfy the workplace to the pOInt of undue hardshIp, whereas my analysIs
suggests no dISCnmInatIOn has occurred. HavIng now turned my mInd to tlllS
hypothetIcal sItuatIOn, I prefer the Court's reasonIng, and I would adopt It even If
I were not obhged to do so (pages 12 to 14)
Umon counsel In the Instant case rehes upon three cases (1) Rlverdale Hospltal
and Canadzan Unzon ofPublzc Employees (1993),39 L.A.C (4th) 63 (Stewart), (2)
Ontarzo Publzc Servlce Employees Unzon and Mlnzstry of Health, deCISIOn dated March
7, 1994, GSB FIle No 2550/92 (DIssanayake), and (3) Vlctorzan Order of Nurses and
Ontarzo Nurses' Assoczatzon (1996), 56 L.A.C (4th) 235 (Low) In each case, vacatIOn
payor severance pay was based upon length of servIce, and serVIce was measured by
excludIng penods when an employee was absent due to dIsabIhty Each arbItrator held
thIS method of calculatIng servIce amounted to dISCnmInatIOn contrary to the apphcable
collectIve agreement or the Ontarzo Human Rlghts Code, because employees absent
from work due to dIsabIhty were treated less favourably than those actIvely employed.
ThIS reasonIng was based upon the premIse that a dIsabled employee absent from work
should be compared to those workIng and led to the conclusIOn that a employee wIth a
dIsabIhty IS entItled to compensatIOn, In the fonn of vacatIOn or severance pay, for tune
not worked. ThIS IS the very sort of reasomng subsequently rejected by the Court of
Appeal In Orzllza Soldlers Memorzal Hmpltal
10
IV
The calculatIOn ofLTIP benefits IS governed by artIcle 42 1 l(a) of the collectIve
agreement
The Long Term Income ProtectIOn benefit IS SIxtY-SIX and two thIrds percent (66
2/3%) of the employee's gross salary at the date of dlsabllzty, mcludmg any
retroactIve salary adjustment to whIch the employee IS entItled. (emphasIs added)
As the benefits receIved by Mr Donoghue were two-thIrds of hIS salary at the date of
dIsabIlIty, the partIes agree he was treated m confonnIty wIth the reqUIrements of tlus
artIcle He was not "entItled" to have the nme per cent mcrease reflected m hIS benefit
payments, wIthm the meamng of thIS artIcle, because that mcrease was not retroactIve
to Ius date of dIsabIlIty
PensIOn contributIOns are governed by the OPSEU PenSIOn Plan The relevant
portIOns of artIcle 7 3 of thIS plan states
(2) If a member qualIfies for a benefit under a long term mcome protectIOn plan
as a result of a dIsabIlIty mcurred on or after the 1st day of July, 1974, the
employer that employed the member on the date when the member qualIfied
for the benefit shall, subject to subsectIOn (7), contribute to the Fund on
behalf of the member the amounts set out m subsectIOns (3), (4) and( 5) wlule
the member contmues to qualIfy for the benefit
(3) Subject to subsectIOn (4), the contnbutIOns mentIOned m subsectIOn (2) shall
be calculated m accordance wIth ArtIcle 4 and paid on the annual salary rate
of the member lmmedzately before the dlsabllzty was zncurred m respect of
whIch he or she qualIfies for a benefit (emphasIs added)
In complIance wIth these prOVISIOns, the penSIOn contnbutIOn paid by the employer on
behalf of the gnevor was based upon hIS salary ImmedIately before he became dIsabled.
The result of applymg the prOVISIOn m the collectIve agreement concernmg L TIP
benefits, and the one m the penSIOn plan concernmg the employer's contributIOn, was
that Mr Donoghue denved no advantage from the nme per cent mcrease receIved by
employees who contmued to work after he left the workplace
11
Does thIS outcome vIOlate the OntarlO Human Rlghts Code? The reasonmg m
OrzUza Soldlers Memorzal Hospltalleads to the conclusIOn there has been no vIOlatIOn
Mr Donoghue was treated less favourably dunng hIS absence from work than
employees remammg on the Job TheIr salary mcluded the nme per cent mcrease and It
was also reflected m the employer's share of penSIOn contributIOns for them, whereas
the mcrease was reflected m neIther the gnevor's L TIP benefits nor the penSIOn
contributIOns made by the employer on hIS behalf ThIS dIfferentIal treatment was based
upon work, not dIsabIhty, and does not contravene the Code There would be a
contraventIOn only If the gnevor receIved less favourable treatment than employees
absent from work for some reason other than dIsabIhty The facts presented to me
dIsclose no such dIspanty Indeed, Mr Donoghue fared better, m two respects, than
able-bodIed employees off the Job he receIved L TIP benefits, and the employer paid
not only ItS share of penSIOn contnbutIOns but also the share that normally would have
been contnbuted by an employee The gnevance IS dIsmIssed.
Issued at Toronto thIS 3rd day of December, 2002
~~
RJchard Brown
VIce-Chair