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HomeMy WebLinkAbout1996-1625.MYERS.98_11_12 - .-. ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-139(5 GSB # 1625/96 OPSEU 96G206 .' IN THE MATIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACf Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OntarIo Public ServIce Employees Uruon (Cathenne Myers) Grievor - and - The Crown m Right of Ontano (Ministry of Natural Resources) Employer BEFORE Owen V Gray Vice-Charr FOR THE Cameron Walker GRIEVOR Gnevance Officer Ontano PublIc ServIce Employees Uruon FOR THE Donna Holmes EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING June 17, 1998 (Wntten SubrrusslOns filed July 31 and August 7,1998) ~ ,- DECISION [1] Cath-erme Myers filed a gnevance on September 6, 1996, as a result of bemg bumped out of her posItIOn as an Area Clerk m the MImstry of Natural Resources The decIsIOn that she could be dIsplaced was based on the employer's calculatIOn of her Contmuous ServIce Date The umon took the posItIOn that the employer's calculatIOn was m error Although the bump as later rescmded as a result of another case, the partIes remam m dIspute about the calculatIOn of the grIevor's Contmuous ServIce Date Tills decIsIOn deals wIth that dIspute [2] The partIes agreed m wntmg on the followmg deSCrIptIOn of the grIevor's work hIstory' November 17, 1980 to January 6, 1981 Full tune Group 2 January 7, 1981 to January 22, 1981 Full tune Group 2 extensIOn January 23 1981 to March 6,1981 Full time Group 1 March 7 1981 to March 31 1981 Full tune Group 2 Apnl1, 1981 to November 16,1981 Part tune Group 1 November 17 1981 to November 16,1982 Part tune Group 1 November 17 1982 to March 31, 1983 Part tune Group 1 April 1 1983 to March 31 1984 Part tune Group 1 April 1, 1984 to January 10 1985 Part tune Group 1 > Termmated January 10 1985 m order to reCeive matermty benefits through Ul. Leave was to have ended May 9, 1985 > Requested adchtIOnalleave for the penod May 10, 1985 to June 2, 1985 granted June 3, 1985 to December 31 1985 Part tune Group 1 January 1, 1986 Appomted to probatIOn RPT > September 19 1988 to January 15, 1989 was on matermty leave, granted under Article 78 of the 1986.88 CollectIve Agreement. -. '" - 2 > January 16 1989 to April 2 1989 was on leave wIthout pay to extend the matermty leave, granted under ArtIcle 29 of the 1986-88 CollectIVe Agreement. [3] Based on tills work illstory, the MImstry determmed that June 3, 1985 was the Gnevor's contmuous servIce date under what IS now ArtIcle 18 1 of the collectIve agreement. The relevant parts of ArtIcle 18 1 provIde as follows ARTICLE 18 - SENIORITY (LENGTH OF CONTINUOUS SERVICE) 18 1 An employee's length of contmuous servIce will accumulate upon completIOn of a probatIonary penod of not more than nme (9) months and shall commence (c) for a regular part tune cIvil servant, from January 1, 1984 or from the date on whIch he commenced a penod of unbroken, part tune employment m the pubhc servIce, unmedIately pnor to appomtment to a regular part tune posItIOn m the cIvil servICe, whIchever IS later; "Unbroken servICe IS that whICh IS not mterrupted by separatIOn from the pubhc servIce "full tune" IS contmuous employment as set out m the hours of work schedules for the appropnate classIficatIOns, and "part tune" IS contmuous employment m accordance wIth the hours of work specIfied m ArtIcle 58. 1 (Hours of Work) EffectIve December 20, 1990, any leaves-of absence granted under ArtIcle 319 (UnclassIfied Employees - Pregnancy and Parental Leave) and 32.19 (Seasonal Employees - Pregnancy and Parental Leave) shall be mcluded m the calculatIOn of length of contmuous servIce [4] The umon agrees that clause (c) and the surroundmg text of what IS now ArtIcle 18 1 governed calculatIOn of the gnevor's contmuous servIce date, but dIsagrees wIth the employer's calculatIOn, It says that the gnevor should have receIved credIt both for the penod of her absence from actIve employment between January 10 and July 2, 1985 and for all of her pnor part-tIme employment, In the alternatIve, It says that the gnevor's absence from actIve employment between January 10 and July 2, 1985 should not be treated as a break m employment, and that the gnevor should have credIt for her part-tIme servIce pnor to that absence The umon relIes on the last paragraph of ArtIcle 18 1, the Employment Standards Act and the Human R~ghts Code m support of these posItIOns - ~ - 3 [5] ArtIcle 18 1 IS the successor to ArtIcle 25 1 of preVlOUS agreements In each of the collectIve agreements m force at and after the gnevor's appomtment to the CIVIl servIce on January 1, 1986, clause (c) of ArtIcle 25 1 read as the correspondmg clause of ArtIcle 18 1 now does The same IS true of the defimtlOllS of "unbroken servIce", "full-tlme" and "part tlme" The last paragraph of ArtIcle 18 1, wruch refers to leaves-of-absence, first appeared m ArtIcle 25 1 of the collectIve agreement that was m effect from January 1, 1992 to December 31, 1993 ("the 1992-93 collectlve agreement"), whIch read (m relevant part) as follows ARTICLE 25 - SENIORITY (LENGTH OF CONTINUOUS SERVICE) 25 1 EffectlVe February 3, 1992, an employee's length of contmuous servIce will accumulate upon completIOn of a probatIOnary penod of not more than nme (9) months and shall commence (c) for a regular part trme CIvil servant, from January 1 1984 or from the date on whIch he commenced a penod of unbroken, part trme employment m the pubhc servIce, rmmechately pnor to appomtment to a regular part trme pOSItIOn m the CIVll servIce, whIchever IS later "Unbroken servIce" IS that whIch IS not mterrupted by separatIOn from the pubhc servIce, "full trme" IS contmuous employment as set out m the hours of work schedules for the appropnate classuicatIOns and part trme IS contmuous employment m accordance WIth the hours of work specuied m Artlcle 61 1 Effectlve December 20 1990, any leaves-of absence granted under ArtIcles 3 9 and 3 35 shall be mcluded m the calculatIOn of length of contmuous servIce. Apart from the added words "Effectlve February 3, 1992" and a change m the probatlOnary penod from 12 months to 9, the opemng language of ArtIcle 251m the 1992-93 collectIve agreement was the same as It had been m all pnor collectlve agreements back to the one m force when the gnevor was appomted to the claSSIfied servIce [6] ArtIcle 39 of the 1992 93 collectlve agreement prOVIded for "pregnancy and parental leave" for unclassIfied employees other than seasonal employees That artIcle read as follows ~::.~--~ 4 391 Pregnancy and parental leaves will be granted to employees under the terms of the Employment Standards Act, Pregnancy leave shall be granted for up to seventeen (17) weeks, and may begm no earher than seventeen (17) weeks before the expected brrth date 392 Parental leaves shall be granted for up to elgthteen (18) weeks ArtIcle 3 35 of the 1992 93 collectIve agreement made the same prOVISIOn for pregnancy and parental leave for seasonal unclassIfied employees PrevIOus collectIve agreements proVIded for "Matermty Leave" for classIfied employees, but those prOVISIOns dId not apply to unclassIfied employees Collective agreements prIor to the 1992 93 collectIve agreement contamed no express provISIOn for matermty, pregnancy or parental leave for unclassIfied employees, so that prIor to January 1, 1992 theIr rIghts to and m respect of such leaves were as defined by the Employment Standards Act ("the ESA") The partIes agree that prIor to the 1992-93 collective agreement, unclassIfied employees "termmated from the OPS m order to receIve matermty and parental leave benefits under the Ul program." They also agree that nothmg turns on whether the grIevor's employment actually termmated on January 10, 1985 or she remamed an employee who was on an unpaId leave [7] Part XI of the ESA applIes (and at all relevant tImes applIed) to the Crown. PrIor to December 20, 1990, Part XI provIded for "Pregnancy Leave" Under subsectIOn 36(1), a pregnant employee who had been employed for at least twelve months and eleven weeks ImmedIately precedmg the estimated day of her delIvery was entItled to "a leave of absence of at least seventeen weeks from her employment or such shorter leave of absence as the employee may request com- mencmg durmg the perIod of eleven weeks ImmedIately precedmg the estimated day of her delIvery" SectIOn 35 prohibIted the employer from termmatmg the employment of someone entitled to such a leave SectIOn 38 provIded that someone entitled to such a leave was entitled to "resume her employment" at the conclusIOn of the leave "wIthout loss of semorIty or benefits accrued to the commencement of her leave of absence" - ~ - 5 - [8] The Employment Standards Amendment Act (Pregnancy and Parental Leave), 1990, S 0 1990, c. 26, ("the 1990 amendmg act") repealed sectIOns 35 through 38 of the ESA and substItuted sectIOns 35 through 38J, whICh provIded for both "pregnancy leave" and "parental leave " A pregnant employee was stlll entltled to a "leave of absence wIthout pay," the length of whIch was 17 weeks or more dependmg on the cIrcumstances SubsectIOn (4) of sectIOn 38e (whIch became sectIOn 42 m the R.S 0 1990 consolIdatIOn of the ESA (R. S 0 1990, c. E 14)), proVIded that 38e (4) Semonty contmues to accrue durmg pregnancy leave or parental leave, The 1990 amendmg act also added sectIOn 38g, now sectIOn 44, wruch provIdes 38g An employer shall not mtumdate dIscIphne, suspend, layoff, dIsmISs or unpose a penalty on an employee because the employee IS or will become ehgible to take, mtends to take or takes pregnancy leave or parental leave. SectIOn 38J provIded that "SectIOn 38e does not apply m respect of any penod before thIs sectIOn comes mto force" With exceptIOns not relevant here, the 1990 amendmg act provIded that ItS proVIsIOns would come mto force when It was proclaImed It was proclaimed on December 20, 1990 [9] In 1996, sectIOn 42 (formerly 38j) of the ESA was further amended by S 0 1996, c, 23, whIch repealed subsectIOn 42(4) and substltuted the followmg' (4) The penod of an employee s pregnancy leave or parental leave IS mcluded m any calculatIOn of hIS or her length of employment (whether or not It IS active employment) length of servIce (whether or not It IS actIve servIce) or semorIty, for the purpose of determmmg whether he or she has a rIght under a contract of employment. (5) The penod of an employee's pregnancy leave or parental leave IS not mcluded when determmmg whether the employee has completed any probatIOnary penod of employment. ~ ~ --. 6 Argument [10] The partIes are m dIspute about the proper treatment under what IS now ArtIcle 18 l(c) of a pregnancy leave that took place m 1985, and about whether the entlre penod of the gnevor's absence from actIve work m 1985 can be charactenzed as a pregnancy leave The partIes agree that durmg the penod January 10 to May 9, 1985 the gnevor was absent on a "pregnancy leave" wIthm .' the meamng of the Employment Standards Act m force at the tlme They are m dIspute about whether the absence durmg the penod May 10 to June 2, 1985 can be so charactenzed. The followmg summary of theIr arguments combmes submIssIOns made orally at hearmg WIth added submIssIOns delIvered m wntmg thereafter [11] The umon's pnmary pOSItIOn IS that the gnevor's entIre absence from January 10 to June 2, 1985 was a pregnancy leave that should have been treated as part of the contmuous part-tIme servIce for whIch she was entItled to receIve credIt when her CSD was calculated, and that her servIce date should therefore be Apnl 1, 1981, the date when she sWItched from full tlme to part-tlme unclassIfied employment. In the alternatlve, If the pregnancy leave IS not mcluded m the contmuous servIce for whIch credIt IS to be gIven m calculatmg the gnevor's contmuous servIce date ("CSD"), the umon's pOSItIOn IS that It should not be treated as a break m servIce, and that the gnevor's part tlme servIce pnor to that penod should be therefore mcluded m calculatmg her CSD [12] In support of ItS pnmary pOSItIOn, the umon relIed m argument on the words added at the end of ArtIcle 251m 1992, namely- EffectIve December 20 1990, any leaves-of absence granted under ArtIcles 3 9 and 3 35 shall be mcluded m the calculatIOn of length of contmuous servIce. The umon says thIS means that effectlve December 20, 1990 the employer was oblIged to recalculate the CSD's of all those who had taken a pregnancy or parental leave at any tlme, whether before or after December 20, 1990, and gIve them credIt for the leaves The umon also argued that the applIcatIOn of - -'- 7 - subsectlOn 42(4) and sectlOn 44 (as they were m the R.S 0 1990 consohdatlOn) of the ESA IS not hmIted to leaves taken after December 20, 1990 It submItted that subsectlOn 42(4) reqUIred that whenever an entltlement (to termmatlOn pay, for example) that depended on semonty was assessed after December 20, 1990, the semonty on whIch the entItlement was assessed would have to be calculated m such a way as to gIve credIt for all pregnancy or parental leaves, whether they were taken.- before or after December 20, 1990 It also submItted that the employer's denymg the gnevor credIt for the 1985 leave or the servIce that preceded It amounted to Imposmg a penalty for her haVIng taken the leave, and that sectlOn 44 prohibIted the ImposItlOn of such a penalty even where It was a reactlOn to a leave taken pnor to December 20, 1990 Reference was made to Re Esselte Pendaflex Canada Inc and Graph~c Commumcatwns Internatwnal Unwn, Local 500M (1992), 26 L.A.C (4th) 257 (SImmons) and Re Corporatwn of the C~ty of Barne and Canad~an Unwn of Publ~c Employees, Local 2380 (1994), 40 L.A.C (4th) 168 (PIcher) [13] The umon also argued that to depnve the gnevor of credIt for the perlOd of her pregnancy leave m calculatmg her CSD was to dIscnmmate agamst her on the baSIS of sex, contrary to the Ontano Human R~ghts Code, R S 0 1990, c. H.19 It cIted Re Canadwn Red Cross Soc~ety and o.p S.E U Loc 5101 (1993), 38 L,A.C (4th) 78 (Samuels) and Re Town of Ajax and C U.P.E, Local 54, (1991), 23 L.A.C (4th) 77 (Rayner) and Re Ontarw Human R~ghts Comm~sswn et al. and S~mpsons-Sears Ltd. (1985), 23 D,L.R. (4th) 321 (S C C) m support of that argument Reference was also made to Thorne v Emerson Electnc Canada Ltd. (1993), 18 C H.R.R D/510 (Ont. Bd Of Inq) and R~ggw v Sheppard Co~ffures Ltd. (1988), 9 C,H.R.R. D/4520 (Ont, Bd. of Inq) [14] In support of ItS alternate posItlOn on the treatment of the gnevor's pregnancy leave, the umon argued that sectlOn 38 of the ESA m force at the tlme of the leave, whIch provIded that the gnevor could "resume her employment" at the concluslOn of the leave "WIthout loss of semonty or benefits accrued to the ~~~ I 8 - commencement of her leave of absence," meant at least that the employer had to gIve her credIt for the part tIme servIce that preceded It, [15] If the absence May 10 to June 2, 1985 IS not found to be part of a pregnancy leave, then the umon argued m the alternatIve that a leave wIthout pay for no more than 30 days should not be consIdered to break the relevant penod of part-tIme servIce for purposes of ArtIcle 18 1 It relIed m that regard on 56(1) ofthe'General RegulatIOn (R.R.O 1990, Reg 977) under the Publ~c Serv~ce Act, whIch defines "contmuous servIce" for purposes of the entItlements defined m that part of the regulatIOn as mcludmg a penod durmg whIch an employee IS absent on leave wIthout pay for not more than 30 days The umon concedes that by ItS terms that part of the regulatIOn does not apply to the gnevor It umon argues, however, that the words "Reference the PublIc ServIce Act" m paragraph 6 of the employer's mternal mterpretatIOn bulletm on ArtIcle 18 1 amounts to a dIrectIOn that ArtIcle 18 1 should be mterpreted m accordance wIth subsectIOn 56(1) of RegulatIOn 977 [16] The employer argued that the language added at the end of ArtIcle 25 1 (now 18 1) m 1992 sImply meant that credIt would be gIVen for pregnancy or patermty lea ves granted after December 20, 1990 That startmg date corresponded to the date as of whIch the 1990 amendments to the ESA became effectIve SectIOn 38J of the 1990 amendmg act made It clear that subsectIOn 38e(4), later 42(4), dId not apply to leaves taken pnor to that effectIve date The employer submItted that the collectIve agreement language should be mterpreted m a manner consIstent WIth the statutory scheme, on the basIs that It was mtended only to mIrror the benefits provIded by that scheme, cItmg Conway, 1482/85 (Kates) The employer also submItted that the language m questIOn cannot apply to the gnevor because the leave to whIch the umon would have It apply was not granted under eIther of the artIcles referred to m that language [17] The employer argued that neIther subsectIOn 38e(4), later 42(4), nor sectIOn 38g, later 44, of the ESA as amended m 1990 could apply WIth respect to ~ .- - 9 a leave taken m 1985 Reference was made to Re Town of Ajax and C U.P.E, Local 53, supra. [18] Accordmgly, the employer argued, the gnevor had and has only the benefit of the pre-1990 prOVISIOns of the Employment Standards Act, whIch proVIded m sectIOn 38 that at the gnevor could "resume her employment" at the conclusIOn of the pregnancy leave "wIthout loss of seruonty or benefits accrued to .' the commencement of her leave of absence" At the tIme of the gnevor's leave, unclassIfied employees (other than seasonal employees) had no "seruonty" nghts as that term IS understood No "entItlement" to "seruonty" had "accrued" to the commencement of her leave, so there was none for sectIOn 38 to preserve dunng the penod of the gnevor's absence on pregnancy leave [19] Reference was made to deCISIOns of Employment Standards Referees who had mterpreted the word "seruonty" m Part XI (partIcularly after the 1990 and before the 1996 amendments) as referrmg only to a measure used m a formal seruonty system, and not to a measure of "length of servIce," partIcularly "actIve" servIce Re Corporatwn of the C~ty of Etob~coke, deCISIOn dated September 8, 1994, ESe 94-161 (NOVIck), Re C~ty of Sault Ste. Mane, deCISIOn dated September 19,1994, ESe 94-174 (Wacyk), Re Embers Realty Ltd., deCISIOn dated January 5, 1995, ESe 95-01 (SIgnoroni), Re Mumc~pahty of Metropol~tan Toronto, deCISIOn dated July 11, 1995, ESe 95-132 (Randall) The employer noted that the ESA had been amended m 1990 to add "length of servIce" to "seruonty" as a measure that contmues to accrue durmg a pregnancy or parental leave, and that the tranSItIOnal prOVISIOns of that amendmg act prOVIded that the changes applIed only to those on leave on or after December 1, 1996 [20] Reference was also made to the Board's deCISIOn m Koss, 781/95 (MIkus), where the Board observed that, It IS clear that the partIes chd not mtend to crecht unclassIfied employees WIth semonty unless or until they were appomted to the classnied servIce. Therefore, while the gnevor worked m unclassIfied pOSItIOns she chd not, accordmg to the collectIve agreement, accumulate any semonty ThIS IS not a SItuatIon where an employee can lose her semonty She cannot lose what she never had, - =- - 10 - [21] The employer also cIted Parent, 1207/89 (decIsIOn dated March 7, 1990, Knopf) and PLtfield, 2564/91 (decIsIOn dated December 14, 1992, Venty) m support of the proposItIOn that where the unclassIfied employment h.1story of an appomtee to the classIfied servIce contams a penod durmg whIch she dId not work at least the mImmum number of hours per week stIpulated by ArtIcle 58 1 of the present agreement (ArtIcle 61 1 of prIor agreements) as constItutmg "part tIme" empleyment, there IS a break m "contInuous servIce" and servIce prIOr to the break IS not credIted m applymg ArtIcle 18 l(c) [22] WIth respect to the Human RLghts Code, the employer argued that there was no eVIdence that unclassIfied employees on matermty leave were a defined group that the employer had smgled out for adverse treatment or that the state of the law or the employer's treatment of them had resulted m dIscnmmatIOn on any recogmzable group It noted that m the state of the law as It eXIsted m 1985, a woman absent from actIve unclassIfied employment due to pregnancy lost credIt for servIce but had a rIght to return to work wh.1ch other unclassIfied employees dId not have If they were absent from work. Reference was made to MalLk v Mimstry of Government SerVLces (1981), 2 C H.H.R. D/374 (Ont, Bd. Of Inq) and Belyea v StatLstLCs Canada (1990), 11 C.H,R.R. D/308 (Can, Human Rts Trib) [23] Concermng the perIod May 10 to June 2, 1985, the employer argued that thIS perIod cannot be treated as a pregnancy leave as there IS no eVIdence that the perIod m questIon was an extensIOn of the grIevor's pregnancy leave Accordmgly, thIs three week perIod constItuted a break In "part tIme employment" so that part tIme employment prIor to the break does not count m calculatmg the grIevor's CSD Concermng the argument that a leave of less than 30 days does not break servIce because of a prOVISIOn of the regulatIOn under the PublIc ServIce Act, the employer responded that It IS the collectIve agreement's provIsIOn that IS to be applIed, not a regulatIOn mapplIcable to employees covered by a collectIve agreement. - ~ - 11 - Decision [24] After the grIevor was appomted to the classIfied servIce on a part time baSIS, she was entItled under clause (c) of what was then ArtIcle 25 1 to a contmuous semce date ("CSD") that was January 1, 1984 or the date on whIch [s]he commenced a penod of unbroken, part trme employment ill the publIc servIce, rmmed1ately pnor to appomtment to a regular part trme pOSItIOn ill the CIVll servIce, whIchever IS later It should be noted that what IS at stake here IS not whether the grIevor WIll get credIt for all her prIor servIce back to 1981 January 1, 1984 IS the earlIest CSD avaIlable under tills prOVISIOn. [25] DetermImng a CSD under the language of clause (c) mvolves workmg backwards from the date of appomtment through each week of "ImmedIately prIor" part time unclassIfied employment to find the first date that IS preceded by somethmg other than another week of "part time employment." ThIS back trackmg stops If It reaches eIther a perIod of separatIOn from the publIc servIce or a perIod of employment that IS not "part time" For tills purpose, "part-time" employment means "contmuous employment" m accordance WIth the hours of work stipulated m what was then ArtIcle 61 1 (now 58 1), namely (a) less than thIrty-SIX and one-quarter (36V.) or forty (40) hours per week, as applIcable to the classuicatIOn to whIch the regular part trme pOSItIOn IS assIgned, but not less than fourteen (14) hours per week, or (b) less than twenty (20) full days over a penod of four (4) consecutIve weeks but not less than nille (9) full days of seven and one-quarter (7V.) or eIght (8) hours, as applIcable to the classuicatIOn to whIch the regular part trme pOSItIOn IS aSSIgned, [26] PrIor to 1992, clause (b) of what was then ArtIcle 25 1 prOVIded that an appomtee WIth prIor full-tIme unclaSSIfied servIce could have as ills or her CSD (b) the date on whIch an employee commences a penod of unbroken full trme servIce ill the publIc servIce, rmmed1ately pnor to appomtment to the ClassIfied ServIce -.,;. -- 12 A smgle week of employment that was not "full tIme" employment was sufficIent to break the "ImmedIately prIor" perIod of full-tIme unclaSSIfied employment for purposes of thIS provISIOn, Parent, supra, PLtfield, supra. SImIlarly, a smgle week that was not "part tIme" employment IS suffiCIent to break the "ImmedIately prIor" perIod of part-tIme unclaSSIfied employment for purposes of clause (c) Tills may seem harsh, but It IS what the partIes agreed .' [27] The terse reference to the PublLc Sermce Act In the employer's mterpretatIOn bulletm does not appear to me to suggest that the employer mtended ItS management to apply the defirutIOn of "contmuous servIce" m an otherwIse mapplIcable prOVISIOn of the regulatIOns under that Act whIch IS at vanance WIth the mearung of the CSD prOVISIOns of the collectIve agreement. In any event, the document IS an mternal one There IS no suggestIOn that It gIves rIse to an estoppel nor, mdeed, that the employer ever acted m accordance WIth the mterpretatIOn that the uruon would have me place on It [28] Accordmgly, an "ImmedIately prIor" perIOd of part tIme unclaSSIfied employment WIll be broken (or, more accurately, delImIted) for purposes of ArtIcle 18 l(c) eIther by a perIod of separatIOn from the publIc servIce or by a penod of employment that was not "part tIme" m the sense that the amount of work assocIated WIth the employment fell m the range IdentIfied by what IS now ArtIcle 58 1 Whether or not someone on unpaId leave remams an employee m some sense, he or she IS not engaged m "part tIme employment" as contemplated by clause 18 l(c) because there are no hours or days of work assocIated WIth the employment. Accordmgly, Ignormg for a moment any effect the Employment Standards Act ("the ESA") or the Human RLghts Code mIght have as regards a pregnancy leave, the language of ArtIcle 25 1 as It eXIsted pnor to 1992 clearly precluded credIt for a perIod of unpaId leave and for any actIve, unclaSSIfied employment that preceded such a leave [29] The unIOn says that there IS a dIfferent result, more favourable to the employee, If the unpaId leave was a pregnancy leave Its prImary pOSItIOn on tills pomt depends on the propOSItIOn that eIther the 1990 amendments to the ESA or - - - 13 - the express reference to pregnancy and parental leaves first added to ArtIcle 25 1 In 1992 (or both) apply to pregnancy leaves whenever taken, whether before or after the December 20, 1990 effectIve date referred to In the latter prOVISIOn. It IS clear from the transItIOnal proVISIOns of the legIslatIOn that amended the ESA In 1990 that the amended prOVISIOns dId not apply to leaves taken prIor to December 20, 1990 HaVIng regard to that, to the express references to the ESA In the new artIcles to whIch the amendment to ArtIcle 25 1 referred and to the presumptIOn agaInst an InterpretatIOn WIth retrospectIve effect In the absence of language that clearly supports It. I agree WIth the employer that the words "EffectIve December 20, 1990" In the last paragraph of ArtIcle 25 1, now 18 1, clearly mean that that paragraph does not apply to leaves taken prIor to that date [30] What remaInS, then, are arguments based on the pre-1990 provISIOns of the ESA and on the Human Rtghts Code Those arguments can avaIl the grIevor only If the entIre perIod of her absence from actIve work In 1985 was a "pregnancy leave" In some sense that engages the ESA or the Human Rtghts Code as the UnIon contends. The partIes are In dIspute, however, about whether the last three weeks of the absence were In any relevant sense part of a pregnancy leave [31] The only eVIdence before me concernIng the grIevor's absence durIng the perIOd May 10 to June 2, 1985 IS the partIes' agreement quoted In paragraph [2] above The agreement sImply states that the grIevor requested "addItIOnal leave" for the perIod and her request was granted It IS apparent from the subsequent reference In that agreement to the grIevor's absence In 1989 that the partIes knew how to say that the addItIOnal leave sought and granted was an extenSIOn of precedmg pregnancy leave If that IS what they had agreed. There was no suggestIOn m argument that the UnIon had thought the statement of agreed fact reflected such an agreement, no clalm that the employer's pOSItIon had caught the UnIon by surprIse after the opportumty to present eVIdence had passed In the cIrcumstances, the mere fact that It began at the orIgmally scheduled - :..- 14 - conclusIOn of a statutory pregnancy leave IS not a sufficIent basIs for a findmg that the penod of leave m questIOn IS an extensIOn of or otherwIse part of the earlIer pregnancy leave [32] EVIdence was not called wIth respect to the gnevor's reason for requestmg the addItIOnal leave, about the connectIOn, If any, between the purpose of the addItIOnal leave and the precedmg pregnancy and cluldbIrth, about any . dIscussIOns between the gnevor and the employer about these Issues or about any understandmg reached before or after the addItIOnal leave was granted concernmg whether It would be treated as an extensIOn of the precedmg pregnancy leave I was offered no reason why such eVIdence, If It eXIsted, could not have been called. The gnevor dId not testify I can only conclude that neIther she nor anyone else was able to provIde any support for the contentIOn that the three week penod m questIOn was an extensIOn of the earlIer pregnancy leave m any sense relevant to the Issues m tlus proceedmg [33] The gnevor was not engaged m part-time employment as defined by ArtIcle 18 1 durmg the three week penod Immediately pnor to June 3, 1995 That penod has not been shown to be part of a "pregnancy leave" and, so, cannot be accorded any favourable treatment to whIch such leaves may be entItled Accordmgly, the penod of "unbroken, part time employment m the publIc servIce" that was "ImmedIately pnor to" the gnevor's appomtment to the classIfied serVIce began on June 3, 1985, the employer's pOSItIOn IS correct and thIS gnevance must be dIsmIssed. [34] That conclUSIOn makes It unnecessary for the purpose of thIS gnevance to address the Issues on whIch I have not already commented The partIes mformed me that thIS was m the nature of a test case, and that other cases mIght turn on Issues raIsed here Accordmgly, I propose to comment on how I would have dIsposed of tlus gnevance If the umon had establIshed that entIre penod of her 1985 absence had been a "pregnancy leave" wIthm the meamng of the then ESA. _. - - 15 [35] It IS true, as the employer argued, that at the time of the leave m questIOn the collectIve agreement dId not define "semorIty" for unclassIfied employees, other than for seasonal employees. The collectIve agreement dId not afford unclassIfied employees any rights as unclass~fied employees that turned on any dlstmct measure of semorIty ArtIcle 18, formerly ArtIcle 25, applIes and allIed only to classIfied employees UnclassIfied employees could look forward to gettmg semorlty rights wruch mIght gIve credIt for theIr unclassIfied employment If, and only after, they were later appomted to the classIfied servIce The passage from Koss, supra, quoted m paragraph [20] above, on wruch the employer relIed, IS followed by the statement that "The Issue IS, m the CIrcumstances of trus case, when and to what degree the grIevor IS to be credIted wIth past servIce" Read together wIth that conclusIOn, the passage sImply emphasIzes that the usual presumptIOn agamst an mterpretatIOn that abridges semorIty rights could not apply to the Issue at hand there [36] At the tIme of the pregnancy leave m questIOn here, sectIOn 38 of the ESA provIded that an employee on pregnancy leave was to be returned to work "wIthout loss of semorIty or benefits accrued to the commencement of her leave of absence" ThIS was remedIal legIslatIOn to whIch a liberal mterpretatIOn should be given, It IS too narrow an mterpretatIOn, m my vIew, to say that the only measure of semorIty preserved or protected by thIS provIsIOn IS a measure of wruch some Immediate use could be made at the tIme [37] When the , status changed from unclassIfied employee to grIevor s classIfied employee m 1986 she became entitled to rights m respect of whIch a measure of semonty was relevant, The measure provIded for m the collective agreement gave credIt only for whatever period of contmuous actIve servIce Immediately preceded the change m status The period for whIch credIt IS gIven would ordmarIly be broken by an unpaId leave, so there IS no credIt for active servIce pnor to such a leave That effect of unpaId leave on a measure of semorIty that turns on contmuous actIve servIce IS precIsely what sectIOn 38 was mtended to amelIorate for pregnancy leaves, m my VIew Whether the calculatIOn - ~ 16 of semorIty IS made before or after the leave, the effect of the ESA wIth respect to leaves prIor to December 20, 1990 was and IS that m makmg a calculatIOn of semorIty on the basIs of contmuous active servIce, credIt must be gIven for active servIce prIor to a pregnancy leave despIte the mterventIOn of the leave, but not for the perIod of the leave Itself. That applIes to calculatIOns of semorIty made under what IS now Article 18 1 Where a perIod of employment for whIch credIt would otherwIse be given IS broken by a pregnancy leave prIor to December 20, 1990, credIt IS to be gIven for the portIOn prIor to the leave but the result IS adjusted to reflect the fact that the perIod of the leave Itself IS not credIted m computmg the contmuous servIce date [38] I am not persuaded that thIS treatment of pregnancy leaves prIor to December 20, 1990 amounts to dISCrImmatIOn on the basIs of sex contrary to the Human RLghts Code The obLter dLcta analysIs m the Red Cross award on whIch the umon relIes compared the treatment of accrual and entitlement to benefits under prOVISIOns of the collective agreement that specifically applIed to pregnancy leave and parental leave WIth the treatment provIded by a general prOVISIOn govermng leaves WIthout pay generally It concluded as follows (at 38 L.A.C (4th) pp 87 88) Thus, If we had to make a determmatIOn under the Human RIghts Code, we would fmd that arts. 16.02(e) and 16 03(d) do create a regrme for employees on pregnancy and parental leave chfferent from the nghts of employees on other types of leave WIthout pay If thIS means that the Code has been VIolated, then arts. 16,02(e) and 16.03(d) can be struck down and the partIes would be left WIth the general prOVISIOn (art. 16 01(c)) governmg the accrual and entItlement to benefits for employees off on pregnancy or parental leave In sum, one would wmd up m the same pOSItIOn as the employer suggested, bu t by a chfferen t rou te In Re Town of Ajax, supra, the collectIve agreement provISIOns alleged to be dISCrImmatory treated pregnancy leaves m some ways less favourably and m other ways more favourably than other unpaid leaves were treated. Here, m the determmatIOn of an employee's contmuous servIce date, the prOVISIOns of the collectIve agreement m effect when the grIevor's CSD was first calculated treated pregnancy leaves m the same way as other leaves WIthout pay The effect of the ~ ~ -- - 17 ESA, as I have found, was to reqUIre a dIfferent and more favourable treatment for pregnancy leaves If companson wIth the treatment of other unpaId leaves IS the proper method of analysIs, as the umon's relIance on the Red Cross award suggests, then It IS hard to see how the dIfferent treatment of pregnancy leaves can be saId to have dIsadvantaged women m a manner whIch amounted to adverse effect dlscnmmatlOn. . [39] In the result, tills gnevance IS dIsmIssed, (yO- Dated at Toronto thIS ~ day of November, 1998 .