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HomeMy WebLinkAbout1977-0058.Kober.78-05-2558/77 ‘C~bWb4 EMPLOYEES 416/598 0688 Suite 2166 GRIEVANCE SETTLEMENT 18O~Dundas Street West BOARD TORONTO, Ontario MSG lZ8 Between: Before: For the Grievor: IN THE MATTER OF AN ARBITRATION'. Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mrs. Josephine. Kober And (Grievor) Ministry of Solicitor General (Employer) Prof. J. R. S. Prichard Vice-Chairman Mrs. Mary Gibb Member Mr. Harry Simon Member Mr. M. Campbell Representative Ontario Public Service Employees Union For the Employer: Mr. Dennis W. Brown Counsel Ministry of Attorney General Hearinq: April 20, 1978 Suite 2100, 180 Dundas St. West Toronto, Ontario M5G 128 In this grievance, the grievor, Mrs. Josephine Kober, alleges that she was required to take a leave of absence against her wishes and that this requirement was in violation of the provisions of the collective agreement 'regarding maternity leave. She seeks compensation for the period of time from when she was required to take her leave of absence to when she would have voluntarily gone on maternity leave. The relevant provisions of the collective agreement are found in Article 11 of the benefits agreement. ARTICLE 11 - MATERNITY LEAVE 11.0 A Deputy Minister shall grant leave of absence without pay and without accumulation of credits for the purpose of childbirth to a female employee who has served mOre than one (1) year including service as a Crown employee immediately prior to her appointment to the Civil Service. 11.1 The leave of absence shell be in accordance with the provisions of the Employment Standards Act. 11.2 A female employee returning from a leave of absence under Section 11.0 to the Ministry in which she was employed immediately prior to such leave shall be assigned to her former classification and be paid at the step in the salary range that she had attained when the leave of absence was granted. The relevant sections of the Employment Standards Act which are expressly incorporated by Article 11.1 of the agreement are: PARTXI PREGNANCY LEAVE 35. No employer shall terminate the employment of or Pregnancy lay off an employee who is entitled to a leave of absence leave under section 36, but .the employer may require the employee to commence a leave of absence pursuant to section 36 at such time as the duties of her position cannot reasonably be performed by a pregnant woman or the performance of her work is materially affected by the pregnancy. 1974, C. 112, s. 35. 36.-(l) An employee who is pregnant and who has been employed When leave by her employer for a period of at least twelve zonths and to be eleven weeks immediately preceding the estimated day of her taken delivery, whether such employment commenced before or after +?*; c -3- the coming into force of this Act, shall be entitled upon her application therefor to a leave of absence of at least seventeen weeks from her employment or such shorter leave of absence as the employee~may request conimencing during the period of eleven weeks immediately preceding the esti- meted day of her delivery. (2)Notwithstanding subsection 1 and subject to sub- Leave after section 5, where the actual date of her delivery is later delivery than the estimated day of her delivery, the leave of absence shall not end before the expiration of six weeks following the actual date of her delivery. (3)The employee shall give her employer two weeks notice Notice in writing of the day upon which she intends to commence her leave of absence and furnish her employer with the certificate of a legally qualified medical practitioner stating that .she is pregnant and giving the estimated day upon which delivery will occur in his opinion. (4)Subject to subsection 5, en employee may, with the Leave consent of her employer, shorten the duration of the leave may be of absence requested under subsection 1. shortened (5)An employee may shorten the duration of the six week Furnishing period mentioned in subsection 2 upon giving her employer one of week's notice of her intention so to do and furnishing her certificate employer with the certificate of a legally qualified medical practitioner stating that she is able to resume her work. 1974, C. 112, s. 36. 37. An employee who does not apply for leave of absence LeaYe under section 36, and who is otherwise entitled to pregnancy where leave thereunder, shall be entitled to and shall be granted employee leave of absence in accordance with section 36 upon providing ceases work her employer before the expiry of two weeks after she ceased to work with a certificate of a legally qualified medical practitioner stating that she was not able to perform the duties of her employment because of a medical condition arising from her pregnancy, and giving the estimated day upon which, in his opinion, delivery will occur or the actual date of her delivery. 1974, C. 112, 5. 37. 38.-(l) An employee who intends to resume her employment Reinstatement on the expiration of a leave of absence granted to her under and preserva- this Part shall so advise her employer and on her return to tion of senior- work her employer shall reinstate the employee to her position ity or provide her with alternative work of a comparable nature at not less than her wages at the time her leave of absence began and without loss of seniority or benefits accrued to the commence- ment of her leave of absence. \ A--,,: -4- (2) Where the employer has suspended or discontinued Idem operations during the leave of absence and has not resumed operations upon the expiry thereof, the employer shall, upon resumption of operations, reinstate the employee to her employment or to alternate work in accordance with an established seniority system or practice of the employer in existence at the time her leave of absence began with no loss of seniority or benefits accrued to the commencement of her leave of absence, and in the absence of such a system or practice shall reinstate the employee in accord- ance with subsection 1. 1974, c.112, s.38. 39. Where an employer fails to comply with the provisions Employment of this Part, an employment standards officer may order standards what action, if any, the employer shall take or what he officer may shall refrain from doing in order to constitute compliance 'make order with this Part and may order what compensation shall be paid by the employer to the Director in trust for the employee. 1974, C. 112, s. 39. rI The grievor, Mrs. Kober, was employed as a security officer by the Ontario Government Protective Service (OGPS). She first joined the OGPS in September, 1974 and worked at that job continuously until December 9, 1976 except for a two month period during which she voluntarily transferred to another position with the Ontario Provincial Police. The OGPS are the security service responsible for patrolling and protecting certain government buildings in Toronto including the Parliament Buildings, Queen's Park complex, Osgoode Hall and OPP Headquarters. The OGPS consists of 137 employees, approximately 8 of whom are women. In October, 1976, the grievor became aware that she was pregnant and on November 17 she met with Chief Inspector Pierce, the head of OGPS, to explain the fact of her pregnancy and to get his advice about how long she might continue to work while pregnant. While there is some dispute as to the substance‘of that meeting,it is clear that the grievor indicated a desire to continue working through a substantial portion of her pregnancy, perhaps with some modification of her duties. -5- On December 7, Inspector Pierce learned from his subordinate, Mr. Williamson, that Mrs. Kober had told him that she could no longer wear her security officer's uniform due to her pregnancy and that her doctor had advised her not to wear tight fitting clothes. As a result she could only work in plainclothes. Inspector Pierce reacted to this news by concluding that since, in his mind, wearing a uniform was a prerequisite to doing the job of a security officer, the grievor should be required to take a leave of absence inmediately for the duration of her pregnancy. He prepared an order to that effect (Exhibit 11) and had it served on the grievor on-December 9. The grievor has not worked with OGPS since that date. Although it is not relevant to the grievance, it is useful to state for purposes of clarification that the grievor voluntarily declined to rejoin OGPS after the birth of her child on June 8, 1977. Although two or three opportunities to begin work .again were offered to her subsequent to the date of birth, the grievor was unable to make satisfactory child care arrangements and therefore resigned from OGPS in August, 1977. The grievance does not relate to this post-birth period. On January 12, 1977 Mr. Williamson wrote to the grievor asking: "Would you be good enough, at your earliest convenience, to give me the date that you will commence Maternity Leave. That is to say 11 weeks before the expected date of birth of your child. Such information must be supported by a Medical Certificate please." (Exhibit 16). On February 11, the grievor submitted a medical certificate from her doctor saying in full: "This is to certify that Mrs. Kober is 22 weeks pregnant. The pregnancy is normal and Mrs. Kober is fit to resume her regular duties until the end of March." (Exhibit 13). Following receipt of this certificate Inspector Pierce wrote -6- to then grievor saying: “It is our opinion that before a decision is made in connection with your proposed return to duty with the OGPS, that all of the ramifications should be discussed with your doctor, I hereby request your permission to confer with your doctor in this connection." (Exhibit 12). The grievor responded by letter (Exhibit 14) on February 21 denying Inspector Pierce permission to confer with her doctor stating that it was her union representative's view that there was sufficient information in the medical certificate previously submitted. At the hearing, the union produced a further medical certificate from the grievor's doctor dated April 13, 1978 stating (Exhibit 10): "With respect to your inquiry dated April 12, 1978, Mrs. Josephine Kober did have a perfectly normal pregnancy, She did not suffer from any complica- tions due to pregnancy. She was medically fit to perform her duties in December, 1976 and in all probability she should have been able to continue her job until February, 1977 (i.e. 26 weeks)." At the hearing it was agreed by counsel that the employer should proceed first. Inspector Pierce was the only witness called for the employer. The union called the grievor and Mrs. E. Younie, another security officer with OGPS. The oral evidence related to: (1) the duties of a female security officer; (2) the reasons why Inspector Pierce decided to require the grievor to begin her leave on December 9; and (3) the flexible treatment previously accorded other employees of OGPS suffering from physical disabilities. The substance of the relevant aspects of this evidence is discussed below in the context of the application of Article 11 of the collective agreement. .> ; -7- 111 - The grievance turns on a proper understanding of Part XI of the EmplOyment Standards Act, 1974, 5. O. 1974 C. 112 which is expressly incorp- orated into the collective agreement by Article 11.1. The employer relies on section 35 which states: No employer shall terminate the employment of or lay off an employee who is entitled to a leave of absence under section 36, but the employer may require the employee to commence a leave of absence pursuant to section 36 at such time as the duties of her position cannot reason; ably be performed by a pregnant woman or the performance of her work is materially affected by the pregnancy. In particular, the employer argued both that the duties of a security officer "cannot reasonably be performed by a pregnant woman" and that the performance of the griever's work was "materially affected by the pregnancy". Furthermore, the employer argued that some guidance as to when "the duties of.her position cannot reasonably be performed by a pregnant woman" can be derived from section 36 of the Act which states the period within which a pregnant employee is entitled to commence a leave of absence on her own initiative. Section 36 provides that the employee "shall be entitled upon her application therefor to a leave of absence of seventeen weeks from her employment or such shorter leave of absence as the employee may request commencing during the period of eleven weeks imnediately preceding the estimated day of delivery". The employer argues that reasonableness in section 35 is thus being statutorily defined as a minimum eleven week period preceding the date of birth and that the employer can rely on this eleven week period in assessing whether or not the duties can reasonably be per- formed by a pregnant woman. The employer did not, of course, argue that this eleven week period was the earliest date at which the employer may require the employee to take a leave of absence for in this particular case the leave -8- was required approximately 24 weeks prior to the expected date of birth. The union takes a different view of the provisions of the Employment Standards Act. It argues that the sections were enacted to protect the employee from unfair dismissal or layoff and should be read within the basic prohibition of section'35 that "no employer shall terminate the employment of or lay off an employee" who is pregnant and has been employed for the requisite qualifying 64 weeks. Furthermore, the union argued that the employer must bear the onus of demonstrating that the exception provided in section 35 applies to the job or the employee in question. The union also disagrees with the employer's view of the relevance of the eleven week period arguing that that times-,period is designed solely to provide a framework of choice for the employee, not the employer. With respect, we find greater merit in the union's position. For the purposes of deciding this grievance and for the benefit of the parties in future applications of Article 11, we have set out below our views as to the proper interpretation of the provisions. The purposes of maternity leave provisions have been described in general terms as follows: The basic aims of childbirth leave for workers are to provide a period of leave from work, long enough to accommodate the employee's needs but short enough to satisfy the employer's interest in continuity of his or her work force, during which time the job of the absent employee will be kept available: the entitlement to re.sume the same or a comparable position with no loss of accumulated fringe benefits and no reduction in wages; and protection against dismissal for pregnancy. (Cook & Eberts, "Policies dffecting Work" in Cook, Opportunity for Choice (1976) pp. 143 - 202 at 169) A majority of the thirteen jurisdictions in Canada have adopted c t \ -9- childbirth leave legislation similar to that in Part XJ of the Ontario Employment Standards Act. Cook and Eberts trace the development of the legislation: British Columbia was the first jurisdiction to enact such legislation; the Maternity Protection Act passed there in 1921 grew directly out of the Maternity Protection Convention of the International Iabour Organization. The 1921 Act indicates the expectation of the British Columbia legislature that passage of similar legislation by other jurisdictions in Canada would soon be forthcoming, but it was not until forty-three years later, in 1969, that New Brunswick became the second Canadian jurisdiction to make provision for leave legislation of general application. Ontario, the federal government, Manitoba, Nova Scotia and Saskatchewan acted in the years 1970 to 1973 to establish legislation (p. 170: footnotes omitted). Ontario first provided for maternity leave in section 9 of the WC, S.O. 1970, c.33. The leave provisions were moved to the Employment Standards Act by S.O. 1972, c.119 and were amended and reenacted in the 1974 revisions Of the Employment Standards Act. Under section 35 the Ontario legislation if the employer wishes to require a pregnant employee to take a leave of absence at any time prior to the date of childbirth, he must demonstrate that either (1) the duties of her position cannot reasonably be performed by a pregnant employee or (2) the performance of her work is materially affected by the pregnancy. It should be pointed out that the two tests are different in nature. The first relates not to the individual employee but rather to a class of employees defined by their pregnancy. In this sense it is a generic text which the employer must meet by demonstrating an incompatability of pregnancy and the job in question irrespective of the performance of the particular employee. The second test is employee - specific; it demands A .~. c?, - 10 - that the employer demonstrate that the performance of the particular employee was materially affected by her pregnancy. It is our view that the employer must bear the onus of proof for both of the tests. This allocation of the onus is~~,_implicit in the only reported case construing an analogous maternity leave provision in a collective agreement (Re United Coperatives (19751, 10 L.A.C. (Zd) 396 (weatherill) and is supportable by analogy to requiring an employee to take sick leave [See Niagara Regional Bd. of Comm'rs of Police (1975). 9 L.A.C. (Id) 272 (Swan); Brown &Beatty, Canadian Labcur Arbitration (1977) pp. 310 - 312 and cases cited therein). While it may have been clearer if the legislation had specifically allocated the onus to the employer asdoesthe Saskatchewan L&our Standards Act, 1969, as amended by S.S. 1973, c.51, s. 50.4, the statutory silence on the issue in Ontario is consistent with our finding. In meeting this onus we reject the employer's argument that the employer can rely on the eleven week period prior to childbirth defined by section 36 as evidence of a reasonable time at which to require the leave of absence. Given their plain meaning, sections 35 and 36 offer no such interpretation. The eleven week period defines the earliest point the employee may elect to leave; it leaves open to the employee the right to stay at work until the date of birth subject to the employer demonstrating either the generic or the specific test of section 35. Furthermore, to read the sections as suggested by the employer would appear to be inconsistent with the legislative intent as demon- strated by the statutory history of the provisions. One important amendment introduced to the Ontario legislation in 1974 was an increase - 11 - in the length of the pre-childbirth period in which the employee was free to elect to take a leave of absence; the period was extended from six weeks to eleven weeks. To accept the employer's argument would be to find a corresponding legislative intent to reduce the employee's protection from a forced leave of absence. We reject such a finding. Viewing the evidence in this framework, the employer's case can be seen as relying primarily on the generic test; that is, the employer argued that the duties of an OGPS security officer cannot reasonably be performed by a pregnant woman. The employer argued that the point during the pregnancy at which the incompatability arises is the point at which the employee is unable to wear her uniform. In this case, the grievor was unable to wear her uniform on December 7 and thus the employer argued that the required leave of absence on December 9 was justified. Apart from the inability to wear her uniform, there was no evidence suggesting that the grievor's work was in any way affected by her pregnancy. Furthermore, the grievor's medical certificate indicated her fitness to work through to the end of February. The employer argued that it was effectively barred from producing employee-specific evidence of the grievor's medical condition because of her refusal to allow Inspector Pierce to consult with her physician. The employer's concern was that unless the physician fully understood the grievor's duties, her opinion as to the grievor's ability to continue work could not usefully be relied on. However, the grievor testified that she gave her physician a full description of her duties and that the medical certificate was prepared in light of these duties. - 12 - While we are not convinced that the employee should have prevented the employer from conferring with her physician, her failure to do so is not fatal to her grievance. As the union pointed out, the employer could have relied on Article.13.8 to require the grievor to undergo a medical examination by a physician selected by the employer. While we are of the view that a more co-operative approach on the part of the employee may have been in the best interests of both parties as it would have met the employer's needs while respecting the employee's choice of physician, the outcome of this case is not affected by the grievor's refusal. The employer presented four reasons relevant to the generic test to justify the forced leave of absence. The first relates to the uniform; to quote from Exhibit 5, the employer stated: "Because your pregnancy prevents you from wearing your uniform and because the wearing of a uniform is a requirement of your position, you are therefore unable to fulfil the requirements of your position". The second reason relates to a concern for the employee; to quote from Exhibit 8, the employer stated: "The high potential of exposure to hazardous situations associated with the duties of a security officer represent a latent risk to your health and to the life of your unborn child". The third reason relates to the duties of a security officer; in particular, the employer argued that a security officer must be prepared to use force in the execution of her duties and that a pregnant officer would be unable or unwilling to do so. The fourth reason relates to the range of jobs within the OGPS; the employer argued that there were no positions in the OGPS with less demanding duties to which the grievor might have been assigned for the -,13 - duration of her pregnancy. After hearing and considering the evidence, we find that none of the reasons are adequately supported by the evidence, and that as a result the employer has failed to meet its onus. Regarding the first reason - the uniform - the evidence indicated that in numerous cases the employer's conduct had been inconsistent with the reasons offered. The grievor and Mrs. Younie offered unchallenged evidence that in several situations security officers had worked in plainclothes. Indeed, the grievor herself and Mrs. Younie both worked for 3 - 4 months in 1974 without uniforms following their joining the OGPS. Although the reasons for the plain- clothes incidents varied, it was clear that while the uniform is conducive to the work of the OGPS, exceptions can and have been made to meet special temporary needs. In our view, pregnancy presents one such need. Regarding the second reason - concern for the health of the mother and unborn child - the evidence failed to indicate that the work of a female security officer involved "a high potential of exposure to hazardous situations." Although the position specifications (Exhibit 9) indicate that the job may involve certain hazards including the carrying of firearms while providing security for money escorts, it became clear from the evidence that female security officers are excluded from situations involving hazards whenever possible. As a result, the grievor was never involved in a situation involving physical contact in her over two years with the OGPS. Similarly, Mrs. Younie's experience was limited - 14 - to one situation of some physical contact (being shoved by a senior civil servant) in her time with OGPS. The majority of a female security officer's work appears to be the provision of information to the public and it is an overstatement to describe it as having a high potential for hazard. This is not to say that there is not some potential hazard involved in the job. Clearly there is. It is simply a finding that given the structure of the security service and the duties assigned to female officers, the potential is relatively modest and not incon- sistent with pregnancy. It is certainly not sufficiently hazardous to deny to the pregnant woman the right to choose the best course of action for herself and her unborn child. We are of the view that the hazards are sufficiently minor that the question of leave based on this reason is best left to the self-determination of the employee. The third reason - the need to be willing and able to use force-is also not supported by the evidence. Experience with the OGPS indicates that it is extremely unlikely that a female officer will be called on to use force in the exercise of her duties and that in almost all situations where she might be, some alternative solution is possible 9 if not preferable. The evidence of the grievor and Mrs. Younie was that neither of them had ever been called upon to use force or exercise their powers of detention and search under the Public works protection Act. (The Case Of Regina & Pacific Western Airlines Ltd., 75 CLLC 14,287 (Prov. ct., B.C.) construing the analogous provision in the Canada ~abour Code is indirectly relevant to the employer's argument on this point. In our view, however, our decision is not inconsistent with the PWA case. - -* -.z - 15 - The fourth reason - the absence of alternative jobs - was also not supported adequately by the evidence. Indeed, it was on this point that evidence most damaging to the employer's case was produced. It appears that over the past three years there have been a number of situa- tions in which persons with physical disabilities have been assigned to the desk and radio job at Queen's Park to accommodate their temporary inability to wear a uniform and/or to move about freely. The cases of Groves, Prentice, Younie and Johnston are representative in this regard. Inspector Pierce was emphatic in stating that each of these cases occurred without his knowledge and that in future he did not intend to permit it. Without disputing that evidence, however, the situations are clear evidence of the potentialfor flexibility in work assignments to accommodate special needs and in our view it would be unfair and unjust to deny similar treatment to a pregnant employee if and when she may need it. In sum, therefore, we find that the employer has failed to meet the requirements of section 35 and thus of Article 11 of the collective agreement, in that it has not been demonstrated that the duties of a security officer cannot reasonably be performed by a pregnant woman or that the performance of the grievor's work was materially affected by the pregnancy. We wish to stress that by this decision we do not mean to in any way detract from the importance of the work performed by the OGPSor the professional manner in which it is carried out. Rather, we are simply of the view that the work of the OGPS and of security officers within it will not be impeded by a pregnant officer. We believe that there can be sufficient flexibility in the OGPS to accommodate the needs of a - 16 - pregnant officer. We are aware that this is the first case of an employee of OGPS becoming pregnant since women first joined the service in 1974 and we are hopeful that the experience with this first case will be of assistance to OGPS in handling future cases. With respect to the remedy for the grievor, she is entitled to her wages for the period she would have worked between December 9 and the date she would have ceased work voluntarily. Unfortunately there is some ambiguity as to this latter date. While the employee's first medical certificate (Exhibit 13) indicated she could work to the end of March, her second certificate (Exhibit 10) indicated that she would have been able to continue her job until the end of February. Since the grievor offered no explanation for this difference between the two certificates, we find that her compensation should be limited to the end of February. We retain jurisdiction on the amount of compensation payable for the period from December 9, 1976 to February 28, 1977, if the parties are unable to reach agreement. Dated at Toronto this 25th day of May 1978. J. Robert S. Prichard Chairman I concur Mary Gibb Member I concur Harry Simon Member