HomeMy WebLinkAbout1991-1389.Union.95-02-17 ONTARIO EMPLOYY2,~ DE IA. COURONNE
CROWN EMPLOYEES DE [.'ONTARIO
GRIEVANCE · COMMISSION DE
SETTLEMENT RI~GLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TE£EPHONE/T~L~PHONE : (416) 326-1388
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GSB# 1389/91
OPSEU# 91D768
~ IN THE I~TTER OF AN
Under.
THE cRO~N EHPLOYEEB COLLECTIVE B~RGAINING ACT ,, .
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Union Grievance)
Grievor
: - and -
The Crown in'Right of Ontario
(Ministry of Health).Halton/Mississauga Amb.
Employer
BEFORE: M. Gorsky Vice-Chairperson
.M. Lyons Member
F. Collict Member
FOR THE G. Adams
UNION Grievance Officer
Ontario Public Service
Employees Union
FOR THE R. Baldwin
EMPLOYER Counsel
Matthews Dinsdale & Clark
Barristers &.Solicitors
HE~RING May 31, 1994
DECISION
On August 14, 1991 a grievance was filed on behalf of
employees with the position title "Driver/Attendants,'' and
classification title of "Ambulance Officer," as follows:
We grieve that all employees who have been on W,C.B.
since April 1/90 have been wrongfully penalized by having
their vacation hours pr.o-rated. This has been done due
to.a work-related injury.
The settlement desired was: ,,
That' all employees ~who have been penalized have. their
hours re-credited or the Employer do a cash payout for
all hours owing.
The parties filed an agreed statement of facts (Exhibit 3),
annexed as Appendix 1.
]Jnion ~rgulnen%
1. The Union position was that the action of the Employer in
treating employees absent for more than one month, who are in
receipt of Workers',Compensation Board ("W.C.B.'")'benefits as being
subject to the provisions of art. 14.06 amounts to discrimination
under sections 5 and 11 of the Huma~ R~hts Co~e ("the ~")
because of handicap.
2. Although the language of art. 14.06 (see Appendix 1) was said
to be neutral on its face, it was said to have, contrary to the
provisions of the Code, an adverse discriminatory impact on a group
of protected employees - those absent from work for more than. one
2
month and in receipt of W.C.B. benefits, who were~ deemed to be
handicapped under the Code by sec. 10 (1)(e), and that the adverse
discriminatory effect was based on, the protected employees'
handicap.
3. Reliance was had on the provisions of art, 3.02 of the
collective agreement which is as follows:
The Company and the Union agree that there will be qO
intimidation, discrimination, interference, restraint or
coercion exercised or practised by either of.them or by
any of their representatives or members. Particularly,
there shall be no discrimination against employees on the
grounds of race, creed, colour, age, sex, religion,
nationality, ancestry, place of origin, union membership
or activity, provided however, that the reference to
"age" in this provision shall not affect the Employer's
right to retire an employee in accordance with the
provisions of the existing pension plan. It is further
.agreed that a married couple, within the bargaining unit
will not work on the same vehicle o~ on the same
regularly scheduled shift at a station..
4. It was submitted that when the parties bargained for art. 3.02
there was an implied term that the Employer would not discriminate
against an employe~because of handicap contrary to the provisions
of the Code.
5. Reference was made to art. 18.06(c) of the collective
agreement:
Seniority shall terminate and an employee shall cease to
be employed by the Company when he ...
(c) is off work for a continuous period of twelve (12)
months subject to the provisions of the Workers'
Compensation Act.
3
6. It was noted that inLthe case of loss of seniority' pursuant to
art. 18.06(c) the parities had negotiated a specific exemption
relating to situations p.rovided for in the Workers' Compensation
7. It was submitted that ~he only prerequisite to the employees
with whom we are concerned, obtaining full vacation pay was the art.
14.01, that provides, in part, that: ~
Employees shall receive vacation with pay in accordance with
credited service with the Company as of their anniversary date
with the Company as fo'llows:
There follows a formula for payment based on the extent of
continuous service,
8. It was submitted that seniority accrues when an employee is in
receipt of W.C.B. benefits. In referring to art. 18.06(c), it was
stated that absence as a result of a.compensable injury has no
impact on the accrual of seniority of an employee Under art. 14.01,
which also contains the follwing:
Clarification Note: Reference to "normal work week" in
this Article refers to a "forty (40) hour work week".
9. Reference was also made to art. 17.01:
The~Company may grant leave of absence without pay to an
employee for legitimate personal reasons for a reasonable
length of time, and any person who is absent with such
written permission, shall continue to accumulate his
.seniority for the first six (6) months of such leave.
10. 'Reference was also made to a number of articles in the Code
R.S.O. 1990, cap. H. 19, the friSt reference being the the
Preamble:
Preamble
WHEREAS recognition of the inherent d. ignity and the
equal and inalienable rights of all members of the human
~family is the foundation of freedom, justice and peace in
the world ~and is in accord with the Universal·.,
Declaration of Human rights as proclaimed by the United
Nations;
AND WHEREAS 'it is public policy in Ontario t6
recognize the'dignity and.worth of every person and to
provide for equal rights and opportunities without
discrimination that is contrary to law, and having as its
aim the creation of a olimate of understanding and mutual
respect for the dignity and worth of each person so that
each person feels a part of the community and able to
contribute fully to the development and well-being of the
community and the Province;
AND WHEREAS these principles have been confirmed in
Ontario by a number of enactments of the Legislature and
it is desirable to revise and extend the protection of
human rights in Ontario;
5.-(1) E~ery person has a right to equal treatment
with respect to employment without discrimination because
of race, ancestry, place of origin, colour, ethnic
origin, citizenship, creed, sex, sexual orientation, age,
record of offences, marital status, family status or
handicap.
9. No person shall infringe or do, directly or
indirectly, anything that infringes a right under this·
Part.
(e) an injury or disability for which benefits
were claimed or received under the Workers'
Compensation Act;
11.~.-(1) A right of a person under Part I 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 the person is a
member, exaept where,
(a) the requirement, qualification or factor is
reasonable and bona fide in the circumstances;
or
(b) it is declared in this Act, other than in
section 17, that toLdiscriminate because of
such~ground is not an infringement of a right.
47.--(1) This Act binds the Crown and every agency of
the Crown.
(2) Where a provision in an Act or regulation,
purports to require or authorize conduct that is a
contravention 'of Part I, this Act applies and prevails
unless the Act or regulation specifically provides.that.
'it is to apply despite this Act.
11. It was submitted that the collective agreements between the
parties had evolVed over time as a result of the implications
arising from the protections granted under the Code, as revised
from time to time. It was submitted that the parties could not
contract.out of the provisions of the Code and any provision in the
collective agreement that c0nfliets with the.Code cannot stand and~
is invalid.
12. It was submitted that s.10(1)(e) of the Code made it clear
that an employee.who had been injured or disabled and in receipt of
W.C.B. benefits was a Person with a handicap. It was also
submitted that on the facts of this case, although art. 14,06 was
neutral on its face, it resulted in an act of constructive or
adverse impact discrimination contrary to the provisions of s.ll(1)
of the CodD, as it resulted in the employees with whom we are
concerned - those absent from work for more than one months and in
receipt of W.C.B. benefits - being subject to exclusion from the
receipt of benefits they would have otherwise received but for
their handicap.
'13. It was submitted that the provisions of para.'5 of the agreed
to statements of facts (Exhibit 3), and particularly the last
sentence, establish a p~. fa~i~ case of discrimination in the
case of employe~s in receipt of W.C.B. benefits who are absent frg~
work for more than one month. Their situation was contrasted with
the case of employees on a leave of absence pursuant to art. 17.01
of the collective agreement. In that case, i~ was said that all
'.employees were treated equally, did not receive pay and continued
to accumulate seniority only for the first six months of the leave
- with the exception of employees on maternity leave who were dealt
with under the provisions of art. 17.'05:
Pregnancy and Parental leave will be granted in
accordance with the provisions of the ~Employment
Standards Act, R.S.O. 1980, as amended from time to time
and specifically as amended by Bill 14, Chapter 26,
Statutes of Ontario 1990.
14. The population used to ascertain 'whether there has been
constructive discrimination under the Code was not the ,employees
absent from work for more than one month, but those employees who'
were not absent for one month and those' who were at work and in
receipt of full salary and benefits. It was said to be necessary
to measure "~mpact and loss" only in relation to the latter
employees.
7
15. It was submitted that the collective agreement provided that
that only employees who had not been absent from work for more than
one month could obtain full vacation pay benefits. For example,
under art.~14.06/an employee absent for a 12 month period while in
receipt of W.C.B. benefits would'lose vacation pay benefits for the
entire year. It was noted that the contract year provision with
respect to vacation entitlement was based on the "fiscal year"
April 1 to March 31 of the following year. ~ This was said to have.
been the case since 1986. Such a provision was said to amount to
constructive discrimination egen if it was ~ot, on its face,
"discrimination on a prohibited ground," because it.had the result
of excluding, on a pro-rated basis, persons absent.from work for
more than one month while receiving W.C.B. benefits, who are
identified by a prohibited ground of discrimination (handicap) and
who were not, in this case, subject to the exceptions found in
s.ll(1)(a) and (b) of the Code.
16. If employees absent from work and in receipt of W.CoB.
benefits are absent for more than a month in the contract year
they are discriminated against in that they suffer a loss by virtue
of the application of th~ provisions bf art. 14.06.
17. It was submitted that the Employer was incorrect whe~ it
suggested that employees absent for more than one month while
receiving W.C.B. benefits would be in receipt of an unearned
benefit if art. 14.06 did not.apply to them. Although they may
8
receive more than others on unpaid leaves, this was as a result of
the operation of the provisions of the Code that require that~they
be treated in a particular manner.
18. It was submitted that employees'receiving W.C.B. benefits must
be excluded from the operation of.art. 14.06 in the same way as
employees on "normal periods of maternity," would be even if they
were not specifically referred to in that article. The situatig~
of employees, such as~those on maternity leave and those in receipt
of W.C.B. benefits, who are'protected by the'Code, was contrasted
with that of persons on other kinds of leave who have no such
protection and are not otherwise protected by any provision of the
collective agreement.
19. Reference was made to Os~a~io (Human Rights Commission) v.
$ir~p~ons-Sears Ltd. (sub nom.) O'Mall~y v. S~nlpsons,Sears (1985),
23 D.L.R. (4th) 321, at pp. 328-30, where the Court .stated ~
McIntyre J.:
It will be seen at once that the problem confronting
the Court involves consideration of unintentional
discrimination on the part of the employer and as well
the concept of adverse effect discrimination. To begin
~with, we must consider the nature and purpose of human
rights legislation. The preamble to the Ontario Human
Rights Code provides the guide and it is worth quoting in
full: (quotation omitted)
There we find enunciated the broad policy of the Code and
it is this policy which should have effect. It is not,
in my view, a sound approach to say that according to
established rules of construction no broader meanin.g can
be given to the Code than the narrowest interpretation of
the words employed. The accepted rules of construction
(
are flexible enough~ to enable the Court to recognize in
the construction of. a human rights code the special
nature and purpose of the enactment (see Lamer J. in
Insurance Corporation of British Columbia v. He~rapink
and Director. Human rig~s Code, [1982] 2 SoC,R. 145, at
pp. 157-8), and give to it an interpretation which will·
advance its broad purposes. Legislation of this type is
of a special ·nature., not quite constitutional but
certainly more than the ordinary - and it is for the
courts to seek out its purpose and give it effect. The
Code aims at the removal of discrimination. .This is to
state the obvious. Its. main approach, however, is not to
punish the discriminator, but rather to provide relief
for the victims of discrimination. It is the result of
the effect of the action complained of which
significant. If it does, in fact, cause discrim%nation;
if its effect is to 'impose on one person or group of
persons obligations, penalties, or restrictive conditions
not imposed on other members of the community, it is
discriminatory.
Without express statutory support in Ontario,
inquiry board ·chairmen and judges have recognized the
principle that an intention to discriminate is not a
necessary element of the discrimination generally
forbidden in Canadian human rights legislation. Laskin
C.J.C., in a dissenting opinion in The Gay Alliance
Toward Equality v. The Vancouver Sun, [1989] 2 S.C.R.
435~ said at p. 446, in reference to s. 3 of the Human
~jghts Code of British Columbia, S.B.C. 1R73 (2nd Sess.),
c. 119, a section prohibiting discrimination with respect
to the supply of ~accommodation, services, and facilities
available to the public:
What appeared to have occurred in this case was a
concern with "motive" as ~if it was being
differentiated from "intent" for criminal law
'purposes. Intent is not, however, an issue under
s. 3 of the Human Rights Code.
This Court in The Ontario Human Rights Commission et al.
V. The Borough of Etobicoke, [1982] 1 S.C.R. 202, found
mandatory ·retirement provisions agreed upon in a
collective agreement discriminatory, even though "there
was no evidence to indicate that the motives' of the
employer were other than honest and in good faith .... "
In Re Attorney GeDeral for Alberta an~ Gates et al.,
(1976), 67 D.L.R. (3d) · 635 (Alta. S.C.T.D.), a case
arising out of a complaint of discrimination on the basis
of sex under s. 5 of The Individual's Rights Protection
Act, S.A. 1972. c. 2,'of Alberta,'because of a lower rate
of pay for female employees than that for males, McDonald
J. of the Alberta Supreme Court. Trial Division, said, at
p. 695:
He also submits that compensation ought to be
directed only when the employer wilfully or
consciously discriminated between the sexes. Here,
he says, the employer did not have the- sexual
distinction in mind when it negotiated first a
collective agreement with the.male group, then with
the female .group, then again with the male group
and so on. However, in my opinion relief in the
form of compensation for lost wages should
ordinarily be granted to a complainant whose
complaint as to unequal pay has been found to be
justified, even in the absence of present or pas%
intent to discriminate on the ground of sex. It is
the discriminatory result which is prohibited and
not a discriminatory intent.
In Re Rocca Group itd. and Muise, 102 D.L.R. (3d) .529,
MacDonald J., speaking for the Prince Edward Island
Supreme Court in Banco, said in dealing with a complaint
under the Human Rights Act, S.PoE.I. 1975, c. 72, at p..
533:
I am not in absolute agreement that it was the
trial Judge's finding that intention was a relevant
part of his finding, however, if it were I would
agree with the appellant's contention that
intention plays no part in considering whether or
not there has been discrimination.
20. Reference was also made to the Statement of. the Court, in
Q'Malley, at pp. 330-1:
I do not consider that to adopt such an approach
does any violence to the Ontario Human Rights Code nor
would it be impractical in its application. To take the
narrower view and hold that intent is a required element
of discrimination under.the Code would seem to me'to
place a virtually insuperable barrier in the way of a
complainant seeking a remedy. It would be extremely
difficult in most circumstances to prove motive, and
motive would be easy to cloak in the formation of rules
which, though imposing equal standards, could create, as
in ~riggs v. Duke Power Co., 401 U.S. 424 (1970),
injustice and discrimination by the equal treatment of
those who are unequal (Dennis v. U.S., 339 U.S. 162. at
p. 184 (1949)), Furthermore, as I have endeavoured to
show, we are dealing here with consequences of conduct
rather than with punishment f6r misbehaviour. In other
words, we are considering what are essentially civil
remedies. The proof of intent, a necessary requirement
in our approach to criminal and punitive legislation,~
should not be a governing factor in .construing human
rights legislation aimed at the elimination of
discrimination. It is my view that the courts below were
in error in finding an intent to discriminate-to be a
necessary element of proof.
21. Reference was also made to the statement of the Court at pp. Lo
330-33:
· .. They did not have to consider the question of advers~
effect discrimination as a concept separate from
intentional discrimination.
The idea of treating as discriminatory regulations
and rules not discriminatory on their face but which have
a discriminatory effect, sometimes termed adverse effect
discrimination, is of American origin and is'usually said
to have been introduced in the' Duke Power case in the
Supreme Court of the United States. In that case the
employer required a~ a condition of employment or
advancement in employment the production of a high school
diploma or the passing of an intelligence test. The.
requirement applied equally to all empl~oyees but had the
effect of excluding from employment a much higher
proportion o~ black applicants than white. It was found
that the requirements were not related to performance on
the job, and the Supreme Court of the United States held
'them to be discriminatory because of their
disproportionate effect, upon the black population~ There
was no provision in the.relevant statute, the Civil
Rights Act 1964, Title VII, 78 Stat. 255, 42 U.S.C.S.
s. 2000-e 2(a)(1), which directed such an interpretation.
Again, without express statutory support in Ontario,
Inquiry Board chairmen have introduced the concept. In
addition to the Inquiry Board decision under review in
this appeal, the adverse effect principle was applied in
Ishar Singh v. Security and Investigation Services Ltd.,
supra; Rand & Canadian Union of Industrial Employees v..
Sealy Eastern Ltd., Upholstery Division, 3 C.H.R.R. D/938
· (Ont.Bd. Inq.,1981). See also Marcotte v. R, io Alaom Ltd.,
'5 C.H.R.R. D/2010 (Canadian Tribunal; 1983); Christie ¥.
Central Alberta Dairy Pool, 6 C.H.R.R. D/2488
(Alta.Bd. Inq.,1984), as well as several others.
A distinction must be made betWeen what I would
describe as direct discrimination and the concept already
referred to as adverse effect discrimination in
connection with employment. Direct discrimination occurs
in this connection where an employer adopts a practice or
rule which on its face discriminates on a prohibited
ground. For example, "No Catholics or no women or no
blacks employed here." There is, of course, no
disagreement in the case at bar that direct
discrimination of that nature~would cOntravene the Act.
On the other hand,.there is the concept of adverse effect
discrimination. It arises where an.employer for genuine
business.reasons adopts a ~rule or standard which is on
its face neutral, and. which will apply equally to all
employees, but which has a discriminatory effect upon a.
prohibited ground on one employee or group of employees
in that it imposes, because of some special
characteristic of the employee or group, obligations,
penalties, or restrictive conditions not imposed on other
members of the work force. For essentially the same.~
reasons that led to the-conclusion that an intent to
discriminate was not required as an element of
discrimination contravening the Code I am of the opinion
that this Court may consider adverse effect
discrimination as described in these reasons a
contradiction of the terms of the Code. An employment
rule honestly made for sound economic or business
reasons, equally applicable to all to whom it is intended
to apply, may yet be discriminatory if it affects a
person or group of persons differently from others to
whom it may apply. From the foregoing I therefore
conclude that the appellant showed a prima facie case of
discrimination based on creed before the Board of
Inquiry.
Where discrimination in connection with ~mployment
on grounds of a person's creed is found, is that person
automatically .entitled to remedies provided Lin the
Ontario Human Rights Code? One of the arguments advanced
in this Court and in the courts below was based on the
fact that the ~, while prohibiting discrimination on
the basis of creed, contains no saving or justifying
clause for the protection of the employer. Such a saving
provision is found in s. '4(6) for cases concerning
discrimination on the basis of age, sex, and marital
status - the bona fide oc6upational qualification
defence. This omission was said to create a vacuum in
the Code and was relied on for the proposition that only
intentional discrimination was prohibited because without
some such protection the innocent discriminator would be
defenceless. While I reject that argument as support for
a limitation of the Code to intentional discrimination,
I do not'on the other hand accept the proposition that on
a showing of adverse effect discrimination on the basis
of religion the right to a remedy is automatic.
No question arises in a case involving direct
discrimination. Where a Working rule or condition of
employment is found to be discriminatory on a prohibited
ground and fails to meet any statutory justification
test, it is simply struck down.: see the Rtobicoke case.
In the case of discrimination on the basis of creed
resulting from the effect of a condition or rule
rationally related to the performance of the job and not
on its face discriminatory a different result follows.
The working rule or condition is~not struck down, but its
effect on the complainant must be considered, and if t~e
purpose of the Ontario Human Rights Code is to be give~
effect some accommodation must :be required from the.
employer for the benefit of the Complainant. The code
must be construed and flexibly applied to protect the
right of the employee who is subject to discrimination
and also to protect the right of the employer to proceed
with the lawful conduct'of his business. The Code was
not intended to accord rights to one to the exclusion of
the rights of the other ....
22. Reference was also made to the statement of the Court at
p.336:
... [The board of inquiry] considered the question of
onus of proof and discussed it at some length. He
concluded that the Commission, which had the conduct of
proceedings at the outset, had the burden of showing a
prima .fac~ case of discrimination, in this case of
discriminatory effect ....
23. Further at pp. 337-8
... The complainant' in proceedings before human rights
tribunals must show a.prima facie case of discrimination.
A prima facie case in this context is one which covers
the allegations made and which, if they are believed, is
complete and sufficient to justify a verdict 'in the
complainant's favour in the absence of an answer from the
respondent - employer ....
24. Reference was also made to Union Gri~evance, 1527/91 (Finley),
decided on June 17, 1993. In that case the grievance stated:
The employer's implementation of Policy #2-15-01
regarding an "Attendance and Absenteeism Program"
constitutes a breach of Article 52, and Article A of the
Collective Agreement and reflects a pattern of harassmen~
directed at emploTees of Penetang Mental Health Centre.
25. One of the positions taken by the Union was:
The treatment of claimants under the Workers~
Compensation Act on the same basis as others is
discriminatory, and violates Article A-1 of the ~,
Collective Agreement.
26. Art. A-1 referred to states:
A.1 There shall be no discrimination 'practiSed by
reason of race, ancestry, place of origin, colour,
ethnic origin, citizenship,~ creed, sex, sexual
orientation, age, marital status, family status, or
hand~cap, as defined in section 9(1) of the Ontario
Human Rights Code (OHRC)
(Emphasis added by the board in
Union gr]evan6e)
27. At p. 10, the Board stated:
The subjecting of the claimant under the Workers'
Compensatiog Act to two sets of time limits and the
potential for immediate arrival at stage 3 produce a
discriminatory result for this employee group and so
violate Article A-1 ....
28. The Board concluded, at p.14:
With respect to claimants under the Workers' Compensation
Act, the Board finds that, although monitoring of these
claimants is not unreasonable, their ~inclusion in the
fixed-threshold system of monitoring while they are under
the aegis of the Workers' Compensation Board is
discriminatory and in violation of Article A-1. ·
.In the result, the Board orders that the calculation
system currently in effect be discontinued and that the
Employer, preferably in consultation with the Union,
begin to develop a calculation system which minimizes the
discrepancies in arrival at the thresholds, prior to
September 1, 1993, and, that claimants under the workers'
Compensation Act cease to be monitored by the fixed-
threshold system effective the date of this award.'
29. Reference was also made to Martin, '1582/91 (Dissanayake). In
that case, there was an allegation that the employer Contravened
art. A~i of the collective agreement by denying the grievor the
position of General Cleaner. in the Housekeeping Department of the
Mental Health Centre at Penetanguishene, Qntario.
Reference was made to the'statement of the Board at pp. 19-20
of Martin: '~
In our view, section 10(I)(e) has a distinct purpose
of protecting persons who have suffered compensable
injuries. It is a recognition by the legislature that
there are inherent risks in the course of employment and
that persons who are unfortunate enough to suffer work
related injury or disability ought not to be adversely
affected by that reason.
Counsel' [for the employer] suggested that it is
absurd to consider a person who cuts his finger at work
and is absent for one ' day on compensation to be
"handicapped". While that' may sound absurd in the
abstract, when considering the purpose of section
10(i)(e), it is not. The prohibition against
discrimination because of handicap is the vehicle the
legislature has chosen to afford protection to employees
who suffer WCB injuries or disabilities~
Such an employee, because he meets the test in section
10(1)(e), is not considered "handicapped" for all
purposes. All it means is that his suffering of the WCB.
injury or his claiming or receipt of benefits should not
be used, in whole or in part, as a basis for a decision
adversely affecting him.
In our view, only such an interpretation would
explain why the legislature found it necessary to address
WCB injuries and disabilities in a separate paragraph,
when it had already dealt with injuries and disabilities
generally in four preceding paragraphs. The legislative
purpose was to ensure that the prohibited grounds in
section 10(1)(e), namely the suffering of an injury or
disability for which compensation is received'under the
Workers CoMpensation Act, will not be the proximate cause
of any decision adversely affecting such employee.
{Emphasis in original)
30. At p..23 of Martin, reference was made to Re Glengarry
Industries (1989), 3 L.A.C. (4th) 326 (Hinnegan), where the board
dealt with the predecessor section to section 10(1)(e). There the
grievor had been absent from work for over six months due to ~,
compensable injury and she was terminated on the basis of an
"automatic termination" clause in the collective agreement Which
provided that "employment shall be terminated ... if the employee.
is absent due to sickness or accident for a .period~of six (6)
consecutive months." After concluding that i~ was entitled to
interpret the collective agreement taking into account all'relevant
legislation including the Code, the board in Glengarry observed, at
pp. 330-332:
Here, there is no issue of just cause for discharge
pursuant to the management's rights clause in that that
was not the basis for the grievor's termination. Rather,
she was terminated by the employer pursuant to the
express provisions of art. 9.07(f), a quite separate and
distinctjprovision of the collective agreement from that
of just cause for discharge pursuant to the management's
rights clause, and the narrow issue before me is whether
the provisions of'the HDman Rights Code, 1981 referred to
above, preclude the application of that collective
agreement provision to an employee absent due to a
compensable injury.
At the outset, it can be stated that the provisions
of the Code referred to do not invalidate or nullify s-s.
(f) of art. 9.07 for all purposes. It applies generally
to any employee absent for a period of six months due to
any sickness or accident, while the Code addresses only
those injuries or disabilities compensable under the
Workers' Compensation Act.
'Accordingly, the Code has no application to other
employees found within that provision and canno~,
therefore, nullify it for all purposes. The only
question is whether the Provisions of the Code render an
employee on Workers' compensation an exception to that
provision.
In interpreting art. 9.07 in the context of the
Human Rights Code. 198~ it must be noted, firstly, that
the provisions of the Code referred to do not expressly
prohibit the. termination of an e~ployee absent due to a
compensable injury; rather, it dictates that an employee
has a right to equal treatment with respec~ to he~
employment and may not be treated differently from other
employees because of her compensible injury, now included
as a handicap under the Code., Thus, the question for
determination here is whether the grievor.was, in fact,
treated differently or unequallybecause of her handicap.
There is no question that the grievor was treated no'
differently from other employees absent for six months
due to sickness or accident. Similarly, there is little
question that she was treated differently from the
majority of the employees in the bargaining unit and that
that difference in treatment was due to her absence
which, in turn, was due to her compensable injury· Those
other employees are entitled to the benefit of the
standard of "proper cause" for termination, which
entitles an employee'to test the employer's application
of that standard at arbitration, bringing to bear all of.
the established arbitral principles and policies
applicable to innocent absenteeism in general.
The grievor, on the other hand, was subject to
automatic termination due to her innocent absence as a
result of her compensable injury. ACcordingly, under the
automatic termination provision, she does not have the
same right as other employees to challenge her
termination within the standard of proper cause.
In my view, that must be deemed unequal or different
treatment from that of the majority of the bargaining
unit employees with respect to her employment. In the
result, it must be concluded that the Human Rights Co4e,
1981 precludes the application of art. 9.07(f) to an
employee on Workers' compensation benefits.
31. The board in Mar~in also r.eferred to. Re Clarke ~Transport
(1990)', 16 L.A.C. '(4th) 160 {Gray), where the grievor was subject
to a reinstatement agreement which, among other things, made him
liable to be discharged if he failed to maintain an attendance
record which was at least equal to the plant average. The grievor
was discharged on the basis of his failure to fulfil.this as well
as other conditions of the reinstatement agreement.
The board in Clarke cited Re Glengarry Industries and NQrth
Bay Civic Hospital January 24, 1990, (H.D. Brown) unreported, and
Arbitrator Gray's comments, at p. 167, are set out at p.. 26 of
Martin:
I agree with and adopt the analysis in those
decisions. In. so'far as para. 3 of the minutes of
settlement here purport to authorize termination of the
grievor if his rate of non-disciplinable absenteeism
exceeds the terminal average, th~ Cod~ precludes its
applicat~o~ in these circumstances b~ca3~se the gr~evor~'s
absences exceed th~ terminal ~verage onl~ as a result of
~bsences d~'~o injuries for w~ich the grievor received
workers' compensation benefits, The fact that the
grievo~ and the union agreed to the terms of the minutes
of settlement does not preclude them from invoking the
Code in this way: Ontario ~uman Rights.~om'n v, Borough
of Etobicoke (1982) 132 D.L.R. (3d) 14 (1982) 1 S.C.R.
202, 82 C,L.L.C.
(Emphasis in Martin)
32. The board in Martin found (at pp. 26-27), that the facts
before it were "analogous":
... The attendance policy of the employer did not
distinguish between WCB absences and other absences. It
therefore had the effect of adversely impacting upon
employees who have suffered compensable injuries or
disabilities. In the present case' the employer's
decision could not be justified on the basis, of the
grievor's absenteeism record without the WCB absences.
Thus, those absences were a proximate cause 'for the
adverse consequences that befell the. grievor, This is a
direct discrimination on the basis'of handicap as defined
by section 10(1)(e) of the Code to the extent that it
does not distinguish between WCB and other absences. The
effect of section 10(1)(e) is to require that such a
distinction be made. Therefore it also follows that it
is in contravention of~ article 1-A of the collective
agreement.
33. Dealing with the subject of "constructive discrimination," the
board, in ~artin, stated, at pp. 27-28:
The employer's policy on attendance could be said t~
be neutral on its face in that it does not 'take into
account the reason for absence. Its concern is the
absence per se. However, in its application it is not
neutral because it has an adverse impact on a group
protected by the Code, i.e. those who suffer compensable
injuries or disabilities. The result of the rule is that
such persons are denied rights, which they would have
otherwise enjoyed. We cannot agree with employer.counsel
that the class is too broad because, as he put it, just
as much as anyone can catch the flu (Re Lily-Cups, supra)
[citation omitted], anyone can get injured at work. In
section 10(1)(e) that protected class is precisely
defined by the statute itself. That class consists of
persons who have or have had injuries or disabilities for
which benefits were or are received.
We find that there is constructive discrimination
under section 11(1) in the applfcation of the. attendance
policy ....
34. Reference was also made to Thorne v. ~merson Electric Canada
L~mited ~t al., an. unreported decisioa, dated February 26, 1993,' of
a Board of Inquiry appointed under the .Code (Deborah J. Leighton).
35. In the Thorne case, the complainant sustained an injury at
work on or 'about January, 1984 and received W.C.B. benefits from
January 25, 1984 until, her return to work on May 14, 1984.. She had
a recurrence of her original injury on May 18~ 1984 and received
20
W.C.B benefits until her return to work'on December 9, 1985. The
parties agreed that the complainant's injury constituted a handicap
under the
36.~ The complainant's seniority was amended to commence December
10, 1969 pursuant to the collective agreement between the
respondent Emerson Electric Canada Ltd. Motor Division and the
union representing the complainant. Section 17.08 of the'appticab~
collective agreement is as follows:
An employee shall cease accumulating seniority under the
following circumstances:
(a) absence with permission for more th~n one year;
(b) absence due to personal illness or accident for more
than one year...
37. The position of Tool Crib Attendant Was posted on March 19,
1990; the complainant entered an internal competition for it, and
was one' of two finalists who were found to be of equal merit.
Pursuant to Section 17.03 of the collective agreement the company
looked to the seniority list as the deciding factor in awarding the
position. The complainant had a seniority date of July 1969 and
had been listed as the most senior employee for several years prior
to the competition, however the other applicant was awarded the
position. The complainant would likely have been the successful
candidate for the position had her start date not been changed
'pursuant to section 17.08(b)~,
21
38. The complainant claimed on the basis of discrimination
because of handicap in contravention of Section 5(1)~ 9 and 11 of
the Human Rights Code R.S.O. 1990 cap. H. 19. In order to prove
her case .she had to prove that she was handicapped and that the
provision in the collective agreement discriminated against her
because of her handicap.
39. The Board of Inquiry stated at pp. 7-9: ~
As the evidence indicates this .clause applies to any
employee'who is absent for more than one year. Thus an
employee taking a leave of absence to retrain for two
years would lose one year of seniority.
The provision in the Collective Agreement is neutral on
its face, that is it does not state that if someone is
handicapped for more than a year that person will lose
seniority depending on time away. Thus, Commission
counsel argues that this is a case of constructive or
adverse discrimination.
.Constructive discrimination as prohibited by Section'i1
of the Code .~. (text omitted)
Section 11 of the Code thus prohibits unintentional
discrimination. O'Malley v. SimsoD Sears (1980), 2
C.H.R.R. D/267, affirmed (1982), 36 O.R. (2d) 59 (Div.
Ct.), affirmed (1982), 38 O.R. (2d) 423 (C.A.), reversed
(1985) 7 C.H.R.R. D/3102 outlines what must be proven to
establish a prima facie case of constructive
discrimination. In that case, the Supreme Court held that
constructive discrimination occurs:
"where an employer for genuine business reasons
adopts a rule or standard which is on its face
neutral, and which will apply equally to all
employees, but which has a discriminatory effect
upon a prohibited ground on one employee or group
of employees in that it imposes, because of some
special characteristic of the employee or group,
obligations, penalties, or restrictive conditions
not imposed on other members of the workforce."
(para. 24772)
Although this case Was decided before the amendment to
Section 11 in 1986 by the Equality mights Sta~ut~ Law
Amendment Act Judith Keene in Hun%an Rights in Ontario
points out that the elements necessary to prove a prima
facie case are changed only in a relatively minor way by
the statutory amendment. Thus, what needs to be proven
for a case of constructive discrimination· is evidence
that:
1. a requirement, qualification or factor in
itself not discriminatory on a prohibited
ground does exist; ~
2. the existence of this requirement,
qualification or factor adversely affects
person or group of persons identified by
prohibited ground of ~discrimination; and
3. the ·complainant as a member 'of the protected
group has been adversely affected by the
requirement, qualification or factor, (See Jo
Keene p. 126)
A review of the jurisprudence in this area indicates
that there are no reported decisions in Ontario
concerning constructive discrimination on the ground of
handicap. However, constructive discrimination has been·
found when dress or uniform codes have forbidden turbans
or beards and also When work schedules have required work
'on a Saturday sabbath. Sfngh v. Workmen's Compensation
~ (1981), 2 C.H.R.R. D/459 (Ont. B.O.I.); O'Malley v.
~]mpson Sears; gQh~tv. Do,tar Inc. These are all cases
where the requirement was neutral on its face but
adversely, affected a particular protected group.
I therefore find that Ms. Thorne, being a member of a
specific class which is protected under the Code,
handicapped in this case,, was adversely affected by the
provision in the 'Collective Agreement in that ·she lost
six months of seniority because~ she was handicapped.
Although the provision in. the Collective Agreement is
neutral on its face it discriminates against anyone
qualifying as handicapped, absent from work for more than
one year as a result of that handicap.
Furthermore, it is clear that parties are not permitted
to contract out of the provisions of the Code. In
Ontario Human Rights Commission, et al. v. T~e Borough of
Etobicoke (1982) 3 C.H.R.R. D/781 the Supreme Court of
Canada ruled in a unanimous decision that an early
mandatory retirement age agreed upon in the terms of the
Collective Agreement with the Union was contrary to the
~_9_d_~. McIntyre J. said:
"Although the Code contains no explicit
restriction on such contracting out, it is
nevertheless a public statute and it
constitutes public policy in Ontario as
appears from a reading of the Statute itself
and as declared in the preamble. It.is clear
from the authorities, both in Canada and in
England, that parties are not competent to
contract themselves out of the provisions of
such enactments and that contracts having such
effect are void, as contrary to Public
policy." (at Para. 6905)
This is a case where the provision in the Collective'
Agreement was'found to be discriminatory and the Supreme
Court of Canada clearly held that such clauses were not
protected by being in a Collective Agreement. In the
case before me the provision is neutral on its face but
adversely affects anyone handicapped absent for mo~e than
a year because of that handicap. Therefore, it is not
protected by being in a'Collective Agreement.
Once a p~ima facie case of constructive discrimination
has been established, the onus of establishing a defence
falls on the Respondent. Subsections ll(1)(a) and (b) of
the Code provide that: (text omitted)
40. It was submitted that the Union, in the case before us, had
made out a prima facie case of constructive discriminatiOn under
section 11 (1) of the Code. Although it might be said that the
provision in the collective agreement tart. 14.06) is neutral on
its fa~e if it is applied equally to all employees, it has
~iscriminatory effect on a prohibited ground on a group of
employees in- that it imposes on them, because of some special
characteristic of that group (handicap) obligations, Penalties or
restrictive conditions not imposed on other 'members of the
workforce (those who are at work and receiving benefits). (Cf.
O'Malley (19851, 7 C.H.R.R. D/3102, at para. 24772, referred to in
24
the Emerson case and set out in para. 40, above. ) It was submitted
that the Employer had failed to undermine the prima facie case, and
therefore the grievance should succeed.
E~ployer Argument ~.
I. We were asked to regard the starting point'for the Employer'/~
argument as being a question arising out of an examination of
sections 5 and 11 of the Cod~: Where is there inequality of
treatment afforded to the employees with whom we are concerned? We
were asked to note that the Code guarantees "equality of
treatment," and prohibits inequality of treatment either directly
or constructively.
~ 2. We were asked to regard the nature of the benefit dealt with
in art. 14.06 of the collective agreement as relating to the amount
of vacation pay that an employee is entitled to. We were urged to
find, looking at the purpose of the benefit provided under art.
14.01, that the Parties had agreed, referring to para. 7 of Exhibit
3 (Appendix 1), that: "The purpose of~this language [art. i4.06]
was to treat vacation pay as a benefit which is earned by an
employee on the basis of time worked."
3. We were urged to find that there was 'no inequality of
treatment in the case of persons receiving W.C.B benefits when
25
absent from work for more than one month by prorating their
vacation benefits as provided for in art. 14.06.
4. The above conclusion was said to follow if the Board focussed
on all of the employees in the bargaining unit and ~egarded them as
being equally subject to the provisions of art. 14.06. That is,
all employees were treated in the same way in being made subject to
the same restrictive conditions, with the exception of employeeD_
during "normal periods of maternity," of whom more will be said.
All employees in the bargaining unit absent from.work for more than
one month in the contract year, with the noted exception, were
treated the same, Ail persons on a leave of absence in excess of
one month were 'treated the s~me whether they were paid or unpaid
during the leave. All of them would suffer the same 'Prejudice if
their absences brought them within'the scope of art. 14.06.
5. Proration of benefits after one month's absence could not be
t~eated as~unequal treatment because of the nature of the absence.
The fact that the absence was due to handicap under the Code and
that an employee with such handicap suffered a detriment.through
the operation of a.provision in the collective agreement, without
more, did not amount to a violation of the o~.
6. It was observed that not all persons absent and in receipt of
W.C.B benefits were subject to proration, and therefore there was
no discriminatio~ merely because an employe~e (who was by definition
26
handicapped under the Code) was in 'receipt of such benefits.
Before proration was applied, an employee had to be absent for more
than one month and the reason for such absence was irrelevant. That
is, the penalty under art. 14,06 for being absent for more than one
month, being the pro-ration of vacation pay, is imposed on all
"members of the workforce" and did not fall within the formulation
of the Supreme Court of Canada at p. 33~ (D.L.R.), para. 24772
(C.H.R.R.) of O'Malley. It was submitted that where the purpo$~
of receiving a benefit is related to time worked by an employee, as
was agreed to be the case in the amtter before us, to suggest that
an employee be paid the full vacatioa pay benefit when he or sh~
has not worked amounted to "dangerous reasoning." The logical
extension of the Union position was said to be that any vacation
pay scheme that paid vacation pay on a pro-rated basis related to
time worked amounted to discrimination under the Code against
handicapped workers.
7. It was suggested that the logic of the Union's submission
would require that an employee absent from work and in receipt of
W.C.Bo benefits for any period would also be entitled to payment of
full salary (a benefit earned by working) for any such period of
absence because but for the absence due to handicap he/ she would
have been at work and be entitled to be paid in accordance with the
provisions of the collective agreement.
27
8. Because ail employees, with the exception of those on normal
maternity leaves, were subject to the prorating provision of art.
14.06', there could be no unequal treatment as no group of employees
was singled out (discriminated against).
9. We were asked to accept the proposition that the cases relied
upon by the Union., with the exception of ,the' O'Malley case, were
not binding on the Board. ,
10. We were asked to note that .the eases cited by the Union which
dealt with automatic termination provisions in collective
agreements, when they dealt with employees who were absent and in
receipt of W.C.B benefits, found unequal treatment because they had
taken employees who would have otherwise been entitled to the
benefit of th~ just cause for dismissal provisions applicable to
the majority of employees and subjected them, because of their
handicap, to different treatment. The benefit.of the just cause
provision was an earned benefit unlike the vacation benefit under
art. 14.06, which the parties had specifically agreed, for the
purpose of this case, to be earned on the basis of time worked.
11. It was submitted that the analysis in those cases focussed on.
the purpose o~f the'clause under consideration that led to automatic
termination, and found that, in the circumstances, automatic
termination of employees absent and in receipt of W.C.B. benefits
was discriminatory.
28
12. We were asked to view art. 14.06 in the case before us as
representing an effort by the parties to relate vacation pay to
time worked, as was agreed in Appendix 1o Accordingly, unlike the
automatic termination cases, the case before us could not be
regarded as one where there was inequality of treatment.
13. Referrence was made to a number of c~ses involving pregnancy
leave, where a disability plan was in place to cover absences an~
where pregnancy leave was excluded from those plans - which cases
will be discussed later in this decision - where it was concluded
that there had been inequality of treatment "vis-a-vis" a
disadvantaged group and that the exclusion from the plan could only
apply to that group.
14. It was noted that in the case before us, within the group of
employees who were off on W.C.B. benefits, only eight of 28 of such
claims were said to be affected.
15. It was stated that if the Union's position was accepted, then
an ~employee absent on Union leave, as provided for in the
collective agreement, and who was adversely affected by art. 14.06,
could also claim that he or she had been discriminated against
under the provisions of the Labour RelatLons Act because of Union
activity.
29
16. We Were also asked to consider the note at the bottom of art.
14.06:
NOTE: Vacation entitlement for fiscal year April 1,
1988 to March 31, 1989 will also be prorated based on the
length of the labour dispute. The formula for
determining such proratng will be as follows:
Calendar Days No. of hours of vacation
'of Labour Dispute ~ entitlement under Article 14.01
365 (rounded off to nearest hour)
This provision in art. 14.06 was said to have been inserted to take
into consideration the fact that there had been a labour dispute
during which employees did not work. This was said to be
consistent with tying vacation pay to time actually worked.
17. Reference was made to the fact that s. 5 of the Code prohibits
discrimination "because of ... handicap." It was submitted that
where benefits, such as vacation pay, were "earned by an employee
on the basis of time worked," as provided for in para. 7 of the
agreed statement of facts, it would be "incorrect reasoning," to
find that the employees absent for more than one month and in
receipt of W.C.B. benefits were discriminated against "because of"
their handicap.
18. The distinction in art. 14.06 was not between handicapped
employees and employees who were not handicapped but between
employees who were not absent from work for more than one month in
a contract year and therefore had earned their entire vacation pay
and those who had not. (It was noted, parenthetically, that the
30
maternity leave exclusion was inserted at the request of the
Union..)
19. As long as pro-ration of vacation pay is not based on a ground
that is prohibited under the Code, there was no reason why the
parties could not agree to reducing the benefits as they did in
art. 14.06.
20. It was submitted that the result would not be different if the
parties had not excluded employees on normal maternity leave from
art. 14,06, as persons on such leave for more than one month would
then not be paid full vacation pay for the same reason as applies
in the case of employees absent from work for more than one month
including those in receipt of W.C.B. benefits.
21. We were asked to conclude that what the parties decided was an
ordinary matter of collective bargaining.
22. Reference was made to the Workers' CQmpensat~oa Act R.S.O.
1990, cap. W. 11. It was submitted that the Workers' Compensation
Ac~ contains the "code" concerning how employers must treat
employees in receipt of W.C.B, benefits. Reference was made to
s. 7 of the Workers' Compensation Act:
(1) An employer, throughout the first year after an
injury to a worker, shall make contributions for
employment benefits in respect of the worker when the
worker is absent from work because of the injury.
(2) For the purpose of determining a worker's
entitlement to benefits under a benefit plan, fund or
arrangement, a worker shall be deemed, for one year after
the date the injury occurred, to continue to be employed
by the worker's employer on the date of the injury.
(3) If the Board finds that an employer has not
complied with its obligations under subsection (1), the
Board may levy a penalty on the employer to a maximum of
the amount of one year's contributions for employment
benefits in respect of the worker.
(4) The employer is liable,to a worker for any loss
the worker suffers as a result of the employer's failure
to make the contributions required by subsection (1). ~
(5) Contributions under subsection (~1) are required
only if,
(a) the employer was making contributions for
employment benefits in respect of the worker
when the injury occurred; and
(b) the worker continues to pay his or her
contributions, if any, for the employment
benefits while absent from work.
23. It was observed that s. 7 did not contain any statement
concerning an employe~ in receipt of W.C.B. benefits being entitled
to the continuation of vacation pay. It was submitted that if such'
a result were intended, the legislation would have contained such
a provision relating to the benefits that injured workers were
entitled to. It was-emphasized that there was nothing in the
Workers' Compensation Act dealing with an employee in receipt of
W.C.B. benefits being entitled to the continuation of a vacation
with pay benefit in an "unprorated" form.
32
24. It was su'bmitted that an employee who misses an entire year as
a result of being off work while in receipt of W.C.B. benefits did
not have an entitlement to a certain guaranteed number of weeks pay
on top of those benefits.
25. It was submitted that if the Union's position was accepted
then an employee in receipt of W.C.B. benefits for an entire year
would be entitled to full, unprorated vacation pay as if he/she had
been at work. It was said to be "only natural" that
as a benefit based on time worked there would be no payment of
vacation pay in the circumstances described. Proration, where an
employee is absent for less than the entire year, is a logical
extension of the purpose of vacation pay as agreed to by the
parties in Appendix 1.
26. Counsel for the Employer also referred to Re Glengarry, at pp.
331-2, including the excerpt found in the last two paragraphs
reproduced at p. 17, and the balance of the quotation found at p.
18:
It is, perhaps, trite to observe that the employment
relationship may be severed by various methods. An employee
may quit or retire or may be discharged for cause. In
addition, the parties may, in their wisdom, negotiate and
agree upon, as they did here in art. 9.07, various
circumstances or occurrences which will result in automatic
termination of employment. Here, in that article, the parties
agreed upon a number of circumstances, including an absence
due to sickness or accident for a period of six months, which
would result in automatic termination. Again, that is a
separate and distinct method of severing the employment
relationship from discharge for just cause; otherwise, the
parties need not have dealt with it in a separate and distinct
collective agreement provision, which they did.
27. It was submitted, relying on the Glengarry Industries cas~,
that this Board must examine the effect of art. 14.06 on all of
employees in the bargaining unit. In the Glengarr~ case, at pp.
331-2, it was found that the grievor had been, "... treated
differently from the majority of the employees in the bargaining
unit and that the difference in treatment was due to her
compensable injury. Those other employees are entit-led to
benefit of the standard of "proper cause" for termination .... "In
the case before us, it was noted that there was no comparison to
the just cause cases, this case being concerned with vacation pay,
where all employees were treated in the same way: they were all
required to earn their holiday pay entitlement.
28. Reference was also made to the case of the Corpqration of the
City of Stratford v. Canadian Union of Public Employees Local 197
et al., being an unreported decision of the Ontario Court of
Justice (Divisional Court) dated April 19, 1991. This was a
decision on an application for judicial review from a decision of
arbitrator E.E. Marszewski (1990), 13 L.A,C. (4th) 1. This case
also concerned an automatic termination pursuant to a provision in
the collective agreement after an eight month absence due to
compensable injuries. In holding that the provision was contrary
to the Human Rights Cgde, 1981 in that case, the arbitrator relied
on the Glengarry case. At p. 3 of the decision of the Divisional
Court, the court stated, per Carruthers J.:
In my view, the arbitrator was bound to consider the
provisions of the Human Rights Code in arriving at her
interpretation of the provision of the collective
agreement in question. And, in light of the issue she
was asked to determine, I do not think that she erred in
arriving at her conclusions solely on the basis of the
provisions of s..4 of the Code without considering those
of s. 16. To my mind, the issue did not raise any
question of "incapability," and accordingly, the
provisions of s. 16 of the Human Rights Cod9 were not
relevant for her purposes.
The right afforded to the g¥ievor under s. 4 of the
Human Rights Code was infringed, in the view of the
arbitrator, because the provision of the collective
agreement in question denied him access to the other'
provisions which deal with the matter of termination of
employment for "just cause". Should the grievor avail
himself of those provisions then it may be relevant to
consider the matter of whether he is incapable or not.
29. It was submitted that the G~en~grry and Stratford cases are
distinguishable from the case before us. Under the collective
agreement before the Board, employees absent for more than one
month and in receipt of WoC.B. benefits are given equal treatment
because they are subject to the same treatment as all other members
of the work force. That is, the restrictive condition of art.
14.06 applies to all memebers of the work force in exactly the same
way.
~0. Reference was made to the Q'Malley case at p.332 (D.L.R.):
A distinction must be made between what I would
describe as direct discrimination and the concept already
referred to as adverse effect discrimination in
connection with employment. Direct discrimination occurs
in this connection where an employer adopts a practice or
rule which on its face discriminates on a prohibited
ground. For example, "No Catholics or no women or no
blacks employed here." There is, of course, no
disagreement in the case at bar that direct
discrimination of that nature would contravene the Act.
On the other hand, there is ~he concept of adverse effect
discrimination. It arises where an employer for genuine
business reasons adopts a rule or standard which is on
its face neutral, and which will apply equally to all
employees, but which has a discriminatory effect upon a
prohibited ground on one employee or group of employees
in that it imposes, because of some special
characteristic of the employee or group, obligations,
penalties, or restrictive conditions not imposed on other
members of the work force. For essentially the same
reasons that led~ to the conclusion that an intent to
discriminate was not required as an element of
discrimination contravening the ~ode, I am of the opinion
that this Court may consider adverse effect
discrimination as described in these reasons ~a
contradiction of the terms of the Code. An employment
rule honestly made for sound economic or business
reasons, equally applicable to all to whom it is intended
to apply, may yet be discriminatory if it affects a
person or group of persons differently from others to
whom it may apply. From the foregoing I therefore
conclude that the appellant showed a prima facie case of
discrimination based on creed before the board of
inquiry.
31. It was submitted that in the case before us the restrictive
condition imposed a requirement that in order to collect all of the
vacation pay to which an employee is entitled under the collective
agreement, that employee must not be absent for more than one
month. After an absence of more than one month for any reason
except maternity leave vacation, entitlement is prorated.
Therefore, the restrictive condition had been "imposed on all other
members of the workforce," and applied equally to all of them.
32. Reference was made to Brooks ¥. Canada Safeway Limited (1989),
10 C,H.RoR. D/6183 (S.C.C.). The Safeway disability plan provided
26 weeks of disability benefits to any worker who had worked for
Safeway for three months and who had to be absent from work for
36
health reasons. The plan, however, denied benefits to pregnant
employees during a 17-week period commencing ten weeks before the
week of childbirth and-extending six weeks after that event.
During this time, pregnant employees who were unable to work,
either because of pregnancy-related complications or non-pregnancy
related illness, were not eligible for disability benefits. UIC
maternity benefits provided an imperfec~ substitute for the
disability benefits because they required a longer work period fo%
eligibility and provided less money for a shorter period of time.
33. The Supreme Court of Canada found that pregnancy provides a
legitimate health-related reason for not working and, as such,
should have been compensated under the Safeway plan. Not to
compensate pregnant employees for legitimate health-related
absences goes against the purpose of human rights legislation which
is to remove unfair disadvantages suffered by groups.
Having found that the plan discriminated against pregnant
employees, the Court considered the second issue in the appeal:
whether discrimination because of pregnancy is discrimination
because of sex.
34. At p. D/6201 para. 44395, the Court stated:
In the case mentioned earlier, Andrews v. Law
Society of British Columbia [(1989), 10 C.H.R.R. D/5719]
McIntyre J. rejected a "similarly situated" test in an
equality rights challenge under the Charter of Rights and
Freedoms. Bliss was not a Charter case, nor is the case
at bar, but the comment of McIntyre J. respecting Bli~s
is of surpassing interest~ He stated (at pp. 167-68)
~D/5741 C.H.R.R.]:
Thus, mere equality of application to similarly
situated groups or individuals does not afford a
realistic test for a violation of equality rights.
for, as has been said, a bad law will not be saved
merely because it operates equally upon those to
whom it has application. Nor will a law
necessarily be bad because it makes distinctions.
A similarly situated test focussing on the equal
application of the law to those to whom it has
application could lead to ~esults akin to those in
Bliss v. Attorney General of Canada, [1979] ~1
S.C,R. 183. In Bliss, a pregnant woman was denied
unemployment benefits to which she would have been
entitled had she not been pregnant. She claimed
that the Unemployment Insuranca Act, i97~ violated
the equality guarantees of the Canadian Bill of
Rights because it discriminated against her on the
basis of her sex. Her claim was dismissed by this
Court on the grounds that there was no
discrimination on the basis of sex, since the class
into which she fell under the Act was that of
pregnant persons, and within that class, all
persons were treated equally.
35. Reliance was had on the fact that a law would not necessarily
be invalid because it made distinct.ions: it being argued.that here
the distinction was made between those employees who were not
absent from work for more than one month and those who were,
36. Reliance was also had on the statement of the Court in Brooks,
at p. D/6202, para. 44397-8:
44397 I am not persuaded by the' argument that
discrimination on the basis of pregnancy cannot amount to
sex discrimination because not all women are pregnant at
any one time. While pregnancy-based discrimination only
affects part of an identifiable group, it does not affect
anyone who is not a member of the group. Many, if not
most claims of partial discrimination fit this pattern.
As numerous decisions and authors have made clear, this
fact does not make the impugned distinction any less
discriminating.
44398 David Pannick, Barrister and Fellow of All
Souls College, Oxford, observed in his work Sex
Discrimination l.aw (Clarendon Press: Oxford, 1985), at
pp. 147-48, that:
The EAT (Employment Appeals Tribunal) was, however,
correct to assume that the less favourable
treatment (if any) of the pregnant woman was on the
ground of her sex. Because only women can become
pregnant, the complainant who is dismissed because
she is pregnant can argue that she would not have
been less favourable treated but for her sex.
requires a very narrow construction of the statute
to exclude less favourable treatment on the ground
of a characteristic unique to one sex. It is quite
true that not all women are (or become) pregnant.
But it is important~ to note that direct
discrimination exists not merely where the
defendant applies a criterion that less favourably
treats all women. It also exists where special,
less favourable, treatment is accorded to a class
consisting only of women, albeit not all women.
Suppose an employer announces that ~it will employ
any man with stated qualifications but only a woman
who has those qualifications and who is over six
feet tall. Albeit not all women are excluded, the
employer has directly discriminated against women
because it has imposed a criterion which less
favourably treats a class composed entirel~ of
women.
I would make note also of the article "Sex Discrimination
in Canada: Taking Stock at the Start of a New Decade"
(1980). 1 C.H.R,R. C/7, at C/ll, by Professor James
MacPherson:
In Bliss v. Attorney-General (Canada~ provisions of
the federal Unemployment Insurance Act which
treated pregnant women more harshly than all other
applicants for unemployment insurance were held not
to constitute sex discrimination. "Any inequality
between the sexes in this area," wrote Mr. Justice
Ritchie for a unanimous Court, "is not created by
legislation but by nature."
The argument that can be advanced in support of this
conclusion is that the unemployment insurance legislation
treats all women, except pregnant women, on an equal
footing with men with respect to eligibility for
benefits, and that the differentiation based on pregnancy
works against women not qua women, but rather on the
basis of a physical condition. It follows, the argument
runs, that the differentiation in the legislation is
between two classes of women, not between women and' men.
In my view, this argument is not valid. The fact that
discrimination is only partial does not convert it into
non-discrimination. For example, federal legislation
that treated some, but not all, Indians more harshly than
whites would be discriminatory. Equally, an employer's
decision not to hire a particular black solely because of
his blackness would run afoul of, provincial human rights
legislation even though the employer hired other blacks.
Legislation or the practice of individuals cannot ~e
saved because they work only a partial discrimination.
The legislation in Bliss works such a partial
discrimination. Although most women are treated equally
with men, a certain class, namely those women who are
pregnant, are treated more harshly because they are
pregnant. Since pregnancy is a condition unique to
women, the legislation denies these women their equality
before the law. By not recognizing this, and by
concluding that differentiation on the basis of pregnancy
is not sex-related, the Supreme Court of Canada has
decided not to strike against one of the most long-
standing and serious obstacles facing women in Canada,
namely legislation and employer practices directed
against pregnant women.
44399 Reference might also be made to the judgment of
Oppal J. of the Supreme Court of British Columbia in
Century Oils (Canada) Inc. v. Davies (1988), 22 B.C.L.R.
(2d) 358, delivered January 28, 1988, in which the
following appears at pp. 364-65):
It may be unduly restrictive and somewhat
artificial to argue that a distinction based on a
characteristic such as pregnancy, which is shared
only by some members of a group, is not
discrimination against the whole group. It is no
answer to say that, since pregnancy discrimination
is not usually applicable to all.women, it is not
discrimination on the basis of sex, for
discrimination which is aimed at or has its effect
upon some people in a particular group as opposed
to the whole of that group is not any the less
discriminatory. This point was made by a board of
inquiry under the former Human Rights Code,
R.S.B.C. 1979, c. 186, in the case of Zarankin v.
Johnstone (1984), 5 C.H.R.R. D/2274 at D/2276...
wherein the board stated:
· .. an employer who selects only some of his
female employees for sexual harassment and
leaves other female employees alone is
discriminating by reason of sex because the
harassment affects only one group adversely.
I~ cannot be said that discrimination is not
proven unless all members of a particular class are
equally affected. The interpretation of sex
discrimination which is suggested by the petitioner
is unduly restrictive and probably runs contrary to
contemporary societal expectations.
37. Relying on the Brooks case, and the cases there referred to;
it was submitted that art. 14.06 deals with all absences from work
for more than a period of one month, with the exception of
pregnancy leave'~or whatever reason e.g. whether the absence is for
jury duty, a layoff, a non-occupational illness or an occupational
illness for which an employee receives W.C.B. benefits. All such
absent employees are treated equally in that they are subject to
the proration formula in exactly the same way.
38. Reference was made to Re Canada Packers Inc. (1992), 28 L.A.C.
(4th) 193 (Solomatenko). In that case there was a provision in the
collective agreement governing when an employee who was out of the
company's employ in excess of an "allowable break" might be
terminated. There the grievor was terminated after he went off
work on November 30, 1988 and was in receipt of W.C.B. benefits to
February 13, 1989. The employer's position was that the grievor
was terminated on January 27, 1989 pursuant to a contractual
provision of the agreement that was noted in the letter of
termination.
41
39. The provisions that had to be interpreted were as follows:
12.5 when Seniority Lost. The seniority of an employee
shall be considered broken, all rights forfeited and
there shall be no obligation to rehire, when he:
{d~ A~lowa~le Breaks. Has been out of the Company's
employ in excess of allowable breaks defined below:
Length of Employee's Service Allowable Break
Over 3 months to 6 months Time equivalent to
one-half of his
length of service. ~
Over 6 months Time equivalent to
length of service up
to two years.
An employee who'returns to work within the time of an
allowable break shall retain the seniority he had at the
time he was laid off, but shall not accumulate additional
seniority during the period of the lay-off. However,
credit for days worked as a part-time or casual employee
will be added to the seniority he had at the time of lay-
off, after being recalled to full time employment and any
intervening regular days off will also be added if such
part-time or casual work occurs on or before the next
regularly scheduled work day that the employee would have
worked had he not been laid off.
16.6 Absence D~e to Accident or Sickness If an
employee is absent from work, because of accident or
sickness, he shall accumulate seniority while off work,
up to the time limits corresponding to seniority as set
out in Section 12.5(d), Allowable Breaks, except that an
employee with two or more years' service shall accumulate
seniority for a period equivalent to his length of
service up to a maximum of four years, and shall be
returned to the job.previously held or to a job carrying
a rate equal to that previously held subject to seniority
providing he can perform the required work
satisfactorily. If the employee would not otherwise have
retained his previous job and is not placed on a job
carrying an equal rate of pay, he shall, subject to
seniority be placed on a job he can satisfactorily
perform. Application for reinstatement after the expiry
of the allowable period shall be considered on its
merits.
42
40. Reliance was had on the decision of the majority of the board,
at pp. 203-5:
The union's second argument or position is that the
grievor's termination should be overturned because the
company's application of art. 12.5(d) in the grievor's
circumstances is in violation of the Ontario Human Rights
Code, 1981, S.O. 1981, c. 53 on grounds of discrimination
because of handicap. The relevant provisions of the Code
are as follows [ss. 4(1) amended 1986, e. 64, s. 18(5);
9(1)(~)(v) amended 1984, c. 58, s.39 - now R.S.O. 1990,
c. a.19, ss. 5(1), 10(1)(2)]: .~. (text omitted)
In support of the general proposition that an
employer must apply a collective agreement in a manner
consistent with public statutes and that an arbitrator is
consequently obliged to construe the relevant
legislation, counsel for the union relied the following
cases: [cases omitted]
More specifically, the union relied on the following
cases for the proposition that the Human Rights Cod~
prevents the operation of such provisions as art.
12.5(d): Re Glengarry industries/Chromal~x CQ~ponents and
U.S.W.A.. Loct 6976 (1989), 3 L.A.C. (4thl 326
(Hinnegan); Re North Bay Civic Hospital and C.U.P.E.~
Loc. 139 (Corkish) (unreported) [summarized 17 C.L.A.S.
26] (H.D. Brown), January 24, 1990); Re Stratford (City)
and C.U.P.E.. Loc. 197 (1990), 13 L.A.C. (4th) 1
(Marszewski), and Re Laurent~an Hospital and C.UoP.E..
Loc 161 (unreported (Marcottel, October 4, 1990). Each
of these cases involved automatic termination of
employment because of absence in excess of a specified
period while the person was in receipt of workers'
compensation benefits. Subsequent to the hearing,
counsel also forwarded to the board a copy of the
unreported Ontario Divisional Court decision (released
April 19, 1991 [summarized 26 A.C.W.S. (3d) 685]) which
dismissed the employer's application for judicial review
in Re Stratford (C~).
41. Reference was made to the statement of the majority of the
board at p.209:
In terms of the union's argument ba~.on the _~
Rights Code, there are several general principles which
are well established in this area of arbitral
jurisprudence. In the first' place, arbitrators have
accepted jurisdiction to consider relevant statutes, such
as the Human Rights Code, to determine whether what has
been alleged to be just cause in the context of discharge
cases is prohibited by the legislation
42. The majority of the board then stated, at pp. 211-213:
In essence, an analysis of the arbitral authorities
on this question begins with the Glengarr~ case. At pp.
330-1 of the award, the arbitrator describes the issues
and the relevant legal principle~ as follows:
In other words, it is not within the
jurisdiction of an arbitrator to purport to enforce'
the provisions of the Code but to determine the
collective agreement obligations of the parties
having reference to that legislation. In dealing
with the issue of jus~ cause, arbitrator Brent
noted that, in interpreting "just cause" within the
context of the collective agreement, an arbitrator
cannot ignore the general law of the land where
there is a conflict between the collective
agreement provisions and the relevant statutory
provision. Accordingly, she concluded that an
arbitrator's jurisdiction to interpret the
collective agreement includes the jurisdiction to
consider the Human ~igbts Code, 1981 in order to
determine whether what is alleged to be just cause
is prevented from being considered just cause by
the legislation.
Here, there is no issue of just cause for
discharge pursuant to the management's rights
clause in that that was not the basis for the
grievor's termination. Rather, she was terminated
by the employer pursuant to the express provisions
of art. 9.07(f), a quite separate and distinct
provision of the collective agreement from that of
just cause for discharge pursuant to the
management's rights clause, and the narrow issue
before me is whether the provisions of the Huma~
Rights Code, 1981 referred to above, preclude the
application of that collective agreement provision
to an employee absent due to a compensable injury.
At the outset, it can be stated that the
provisions of the Code referred to do not
invalidate or nullify s-s. (f) of art. 9.07 for all
purposes. It applies generally to any employee
absent for a period of six months due to any
sickness or accident, while the Code addresses only
those injuries or disabilities compensable under
the Workers' CompensatiQn Act.
In interpreting art. 9.07 in the context of
the Human Rights Code. 1981 it must be noted,
firstly, that the provisions of the code referred
to do not expressly prohibit the termination of an
employee absent due to a compensable injury;
rather, it dictates that an employee has a right to
equal treatment with respe,ct to her employment and
may not be treated differently from other employees
because of her compensable injury, now included a~s
a handicap under the Code. Thus, the question fo~
determination here is whether the grievor was, in
fact, treated differently or unequally because of
her handicap.
To this point, I concur generally with arbitrator
Hinnegan's analysis of the issues and relevant legal
principles. I note particularly the comment that the
question for determination is whether the grievor was, in
fact, treated differently or unequally because of her
handicap. With all due respects however, I am unable to
concur with his conclusions and logic which follow this
analysis of the issues (at pp. 331-2) wherein, after
noting that the grievor was treated no differently from
other employees absent for six months due to sickness or
accident (with which I concur), he stated:
Similarly, there is..little question that she was
treated differently from the majority of the
employees in the bargaining unit and that that
difference in treatment was due to her absence
which, in turn, was due to her compensable injury.
Those other employees are entitled to the benefit
of the standard of "proper cause" for termination,
which entitles an employee to test the employer's
application of that standard at arbitration,
bringing to bear all of the established arbitral
principles and policies applicable to innocent
absenteeism in general.
The grievor, on the other hand, was subject to
automatic termination due to her innocent absence
as a result of her compensable injury.
Accordingly, under the automatic termination
provision, she does not have the same right as
other employees to challenge her termination within
the standard of proper cause.
In my view, that must be deemed unequal or
different from that of the majority of the
bargaining unit employees with respect to her
employment. In result, it must be concluded that
the HumaD Rights CodeJ 1981 precludes the
application of art. 9.07{f) to an employee on
workers' compensation benefits.
In my view, arbitrator Hinnegan did not determine the
question whether the grievor in that case was treated
differently because of her handicap (as defined under the
Code). Instead, he answered the question whether the
grievor had been treated differently from the majority of
employees because the standard of "proper cause" was not
available to her. In my respectful opinion, that is
the issue or question which must be addressed when
attempting to determine whether the Code precludes the
application of a provision such as art. 12.5(d) to
someone such as the grievor who is in receipt of benefits
unde? the Workers' Compensation Act, R.S.O. 1990,
W.11.
The starting point for the analysis in my view
begins with the operative part of s. 4(1) of the Code,
the phrase "because of". That language requires
~aus~lity between the two events and not merely
correlation. In other words, for the company to run
afoul of the provisions of the Code, it must have
terminated the grievor's employment for the very reason
that she was in receipt of workers' compensation
benefits, not simply because the termination occurred
while she was in receipt of the benefits. In my
respectful opinion, the cases following the Glengarry
line of reasoning in effect stand for the proposition
that the employer contravenes the Code any time an
employee is terminated while in receipt of workers'
compensation benefits. .That is not what is proscribed by
the Code. In the matter before this arbitration board,
there is no evidence whatsoever even to suggest that the
grievor's employment was terminated for the reason,
either solely or partially, that she was in receipt of
workers' compensation benefits. Instead, she was
terminated solely for the reason that her absence
exceeded the period of the allowable break provided for
under the collective agreement. The fact that she
received workers' compensation benefits was purely
coincidental; the same rules were applied to her as would
have been for someone who was absent for other than a
compensable injury or illness. In short, the grievor's
termination was the result of the operation of certain
mutually agreed to provisions of the collective agreement
which were not contingent upon or in any way related to
whether the employee was i~ receipt of workers'
compensation benefits. (Emphasis in original)
43. Reference was also made to Palmer, Collective A~reement
Arbitration in Canada 3d at p, 670:
4. Vacations and Vacation Pay
A. PURPOSE AND ENTITLEMENT
16.98 Vacation benefits have generally been
regarded as earned benefits forming part of the total
wage package. Dubin J.A. observes [in Bo~relli iv.
Flanigan, (1973) 36 D.L.R. (3d) 4 (C,A.) at p. 14]:
... [W]ith respect to collateral benefits obtained,
pursuant to collective bargaining agreements or
private contracts of empkoyment, I would view such
benefits as part of the wage package and the
benefits received as having been paid for by the
employee.
... [I]t is safe to assume in present society that
such benefits are included in the wages which the
employee receives and for which he must work .... It
is well known that in the determination of a
remuneration to be paid to employees "fringe
benefits" are considered in arriving at a total
wage benefit package, and the amount of the weekly
salary or wage is dependent upon the cost of the
totality of the benefits.
16.99 Entitlement to vacations or vacation pay
is usually made conditional on the person claiming the
benefit being an "employee". It has been held that,
unless the collective agreement specifies otherwise, a
person on disability or sick leave, on lay-off, or on
maternity leave does not cease to be an employee and is
entitled to full vacation pay. The collective agreement
frequently contains a qualifying or cut-off date and an
employee who leaves the employ of his employer or whose
employment is terminated before that date is not entitled
to the vacation benefits stipulated. If an employee does
not qualify for vacation benefits under a collective
agreement, his benefits are determined by the relevant
legislation. It ~might be noted, absent provisions for
pay, an employer cannot require an employee to take a
vacation.
47
44. Reference was also made to Brown and Beatty Canadian Labgur
Arbitration (3dl paras. 8:3210, 8:3220, 8:3230, 8:3240.
45. In para. 8:3210, the authors state:
... However, where entitlement is dependent only on
establishing one's status as an employee, it has been
held that because a person on disability or sick leave,
or on layoff, does not cease to be an employee by virtue
only of those conditions, he may,~subject to the specific
terms of the agreement, claim his full vacation pay
entitlement for those years in which he was disabled
laid off ....
46. In para. 8:3220 under the heading, "Credited Service for
Vacations," the authors state:
... Thus, while the arbitral jurisprudence may have been
otherwise at one time, where the amount of vacation pay
or duration of vacation is calculated on the period of
time a person has been "continuously employed" or "in
service," in the absence of some clear expression of
intention to the contrary, most arbitrators have held
that employees who have engaged in a lawful strike, were
off work because of illness, disability, leave of
absence, maternity leave, or because they have been laid
off during the course of the year, were entitled to count
such time that they were not at work. Where, by
contrast, the agreement makes the accumulation of
vacation credits conditional upon actual performance of
work, active employment, or upon being on the payroll,
working a specific number of available working hours, or
where it limits the accumulation of vacation credits to
specific instances, the resolution would likely be
otherwise.
47. It was noted that the parties had acknowledged that
entitlement to payment of vacation benefits was based "historically
on time worked."
48. Reference was also made to Re Sola Basic Ltd. (1976), 1i
L.A.C. (2d) 328 (Beck) at pp. 330-1:
The most recent authoritative statement as to the
nature of such benefits as vacation pay is found in the
judgment of Dubin J.A., in the Ontario Court of Appeal in
Boarelli v, Flannigan, r1973] 3 O.R. 69 at p.79, 36
D.L.R. (3d) 4: [text omitted - see above, para. 43]
The decision in Re Northern Electric Co. Ltd. and
~.A.W.~ Local 1530 (1974), 6 L.A.C. (2d) 181 (Johnston),
is particularly relevant. It sets out the gener&~
principles applicable to a case like this and states that
"... vacation pay is a fringe benefit and part of the
total wage structure contemplated by the collective
agreement", at p. 183. The decision then notes, at p.
184, that~ a'collective agreement may make provision for
reduction in vacation entitlements in some circumstances.
For instance those on lay-off could be specifically
excluded, or the phrase "on active payroll at the time of
vacation" would exclude those on lay-off. Similarly,
vacation pay may be reduced by specific reference to
absence due to accident or illness. But absent such
specific terms in a collective agreement which cut down
or reduce the entitlement to vacation pay, such terms
will not be read in or interpreted out of a collective
agreement that provides for vacation pay based on
service.
To similar effect is the decision in Re Alger Pre~s
Ltd. and oshawa Printing ~res~men ~ Assistants Union. No.
33__~2 (1973), 2. L.A.C. (2d) 162 (Weatherill). In that
case vacation pay was also related to length of service.
The employee in question suffered an accident in
December, 1970, and was absent until December, 1971. Two
days after returning to work he suffered a heart attack
and was absent until June, 1972. ThE company sought to
reduce his four weeks' vacation with pay which his length
of service entitled him to. In stressing that vacation
pay is a fringe benefit that is earned by the employee
the board said [at p.165]:
... it must surely be said that after 25 years of
service, [the employee] must be taken to have
earned a four weeks' annual vacation with pay. If
the company's argument ... were to succeed, it
would have the effect of reducing that entitlemen%
to some degree by reason of the fact of the
grievor's involuntary absence throughout a
substantial part of the vacation year.
The board went on to say that a collective agreement
could well provide for such a reduction but in the
absence of such provision it would be improper for a
board to write such terms in ....
49. Reference was made to Re Lions Gate ~ospital (1979), 23 L.A.C.
(2d) 308 (Larson), where the grievor .had taken an unpaid leave of
absence for longer than 30 days because of~severe ilness. In that
case, the provision in the collective agreement that was relevant~
is as follows:
If an unpaid Leave of Absence or an
accumulation of unpaid Leaves of Absence exceeds
twenty (20) working days in any year, the Employee
shall not accumulate benefits from the twenty-first
(21st) day of the unpaid leave to the last day of
the unpaid leave but shall acumulate benefits and
receive credit for previously earned benefits upon
expiration of the unpaid leave.
Article IX, s. 2 makes a provision for vacation in the following
terms:
(b) Employees with more than one (1) year of continuous
service shall have earned twenty (20) work days'
vacation with pay. This provision applies when the
qualifying date occurs before July 1st in each
year.
Seniority is dealt with in art. VI, s. 1 which provides:
(b) Upon completion of the probationary period, the initial
date of employment shall be the anniversary date of the
Employee for the purpose of determining perquisites and
seniority.
50. At p.310 of the decision, the majority of the board stated:
That the collective agreement was intended to
restrict the accumulation of vacation credits during
lengthy periods of unpaid leave has a certain logic. It
seems settled that vacation pay is an earned benefit
comprising part of the wage structure. An employee earns
a paid vacation while working in the ordinary course of
his employment. At vacation time he merely collects what
he has already earned. A paid vacation is not "a means
of indemnifying employees against losing.., wages through
not being allowed to work": Re T.F,C. of Canada Ltd. and
Textile Workers' Un~on of America. Local 1332 (1872), 1
L.A.C. (2d) 382 (Adell) at p.384. It follows that an
employee who works less would not be expected to accrue
vacation credit at the same rate as those who attend
regularly at work. That is certainly what happens in
respect of part-time employees. See "Addendum -- Part-
Time Employees", para. (a).
It is true that not all regu,lar full-time employees
work exactly the same amount of time and yet may be
entitled to an equal amount of paid vacation. This~._
however, constitutes the exception that proves the rule.
Under this collective agreement small differences in
service between employees are to be regarded as de
minimu~ -- too insubstantial to make any difference in
benefits. However, an employee being on unpaid leave
more than 20 days in a year is a fact to be regarded as
significant. In that case benefits are expressly stated
not to accrue, and this includes continuous service
credits.
Under art. VII, s. 3 an employee does not accumulate
vacation credits after the 20th day of an unpaid leave of
absence. Accumulated credit is specifically maintained
and recommences accrual when the employee returns to
work.
In the result the grievance fails ....
51. Reliance was had on Re Canadian Airlines ~ntern~tional Ltd.
(1993), 32 L.A.C. (4th) 398 (Springate). In that case the
grievance involved the vacation entitlement of flight attendants of
a predecessor employer.
Rather than hearing the original grievances, the arbitrator,
as agreed to by the parties, ruled on the union's contention that
by virtue of the Canadian~man Rights AQt, R.S.C. 1985, c. H-6, an
attendant on maternity leave was entitled to accrue full vacation
entitlement for her entire absence from work as opposed to just the
51
initial 18 weeks as provided for in the relevant collective
agreement.
52. Pursuant to a provision in the collective agreement, generally
when employees took a leave of absence in excess of 60 days their
vacation entitlement was' reduced. There were several exceptions to
the 60-day rule, one of these being for~ employees on maternity
leave. For those employees, there was no vacation entitleme~
proration for the first 18 weeks of leave, although vacation
entitlement was prorated for the remainder of the leave.
53. The submissions of the union are set out at p. 405:
Union counsel contended that Wardair's action in
prorating the vacation entitlement of employees on
maternity leave was a form of discrimination on the basis
of sex since it placed an impediment on pregnant women
not placed on other employees absent from the work place.
In support of this contention counsel noted that the
collective agreement did not call for the proration of
the vacation entitlement of flight attendants who were on
a leave of absence for jury or witness duty, irrespective
of the length of time they were off work. Counsel
submitted that it was.discriminatory for Wardair to
provide employees absent due to jury or witness duty with
greater benefits than employees whose absence from the
work place was the product of an innate characteristic,
namely, their sex.
In support of this position union counsel relied on
the judgment of the Supreme Court of Canada in Brooks v,
Canada Safeway Ltd.
54. At pp. 406-09, the board stated:
In the instant case employees on maternity leave
actually received more favourable treatment with respect
to vacation entitlement than did employees off work on
account of sickness or injury. They also Yeceived more
favourable treatment than did employees off on personal,
educational or union leave. Employees on maternity leave
were treated in the same manner as were employees on a
child care leave of absence where the child was adopted.
The only group the union can point to who might have
received more favourable treatment than employees on
maternity leave were employees on witness or jury duty
leave.
In the Brooks case the Supreme Court of Canada
compared the situation of women off work on maternity
leave with other employees who were off work for health-
related reasons. The union here seeks to make the
comparison with a group whose absence from work was in no
way related to their health. Any employees who while on
witness leave actually testifie~ on behalf of Wardair
could reasonably be said to have been working for the
company. Unlike employees on maternity leave, all of,
those on witness or jury leave would have been required
to attend at a specific location at a particular time and
stay until dismissed. They would not have had control
over their activities while attending to their witness or
jurY duties. In addition,, the likelihood of a Wardair
flight attendant actually being on a jury or giving
evidence for a period longer than 18 weeks (the time
during which the vacation entitlement of an employee on
maternity leave was not prorated) would presumably have
been remote. Having regard to these considerations, I am
not satisfied that the situation involving employees on
witness and jury leave reasonably leads to the conclusion
that flight attendants on maternity leave were being
discriminated against.
Alleged discrimination in comparison w~th employee~
~e~erally
Union counsel contended that any treatment accorded
a pregnant woman which differs from the treatment
accorded employees generally is discriminatory and
contrary to the Canadian Human ~ights Act. He submitted
that Wardair's action in taking away vacation entitlement
which otherwise would have accrued to employees on
maternity leave was discriminatory irrespective of the
manner in which Wardair treated other employees absent
from work.
A similar argument was raised in Re Glen Haven Manor
Corp. and C.U.P.E., ~oc. 2330 (1991), 19 L.A.C. (4th) 61
(Darby). In that case the employer applied a prorating
policy equally to all employees who were on unpaid
leaves. The union, relying on the Supreme Court of
Canada's judgment in the Brooks case, contended that by
prorating the vacation entitlement of an employee on
maternity leave the employer had discriminated against
her on the basis of her sex contrary to the Human Rights
Act' of Nova Scotia. The board of arbitration rejected
this contention. The board commented that ~unlike the
Brooks case, where an employee had been denied benefits
available to everyone else, the employee in question had
been treated exactly the same as every other employee.
The board's reasoning was summarized as follows at pp.
71-2:
In conclusion and to recapitulate: in our
opinion, while discrimination based on pregnancy
would be discrimination based on sex and therefore
illegal, there was neither directly nor indirectly
any discrimination whatsoever whether baaed on sex,
on marital status or on physical (or mental)
disability in the Employer's policy of prorati~
vacation benefits for females on maternity leave.
It is important to recognize that no "obligations,
penalties, or restrictive conditions" are imposed
on either the Grievor or on pregnant females or on
females generally that is not imposed on everyone
in the bargaining unit. Nor is this a case where
the Employer applied a criterion that "less
favourably treats all women" or "where special,
less favourable treatment is accorded to a class
consisting only of women, albeit not all women".
In short, there is not discrimination between
pregnant women and anyone else either directly or
indirectly. Final]y, there is no evidence that the
policy'of proration imposes an unfair disadvantage
on that group in society called pregnant women such
as might trigger the need for some affirmative or
at least neutraliz'ing action in order to fulfil or
further the key purpose of anti-discrimination
legislation, which is to remove such unfair
disadvantage.
For a somewhat similar result involving the issue of
seniority accrual during maternity leave, see Re Ajax
iTown) and C.U.P.E.0 Loc. 54 (1991), 23 L.A.C. (4th) 77
(Rayner).
The rationale underlying the union's position
appears to be that for vacation entitlement purposes the
situation of an employee on maternity leave should be
compared with what the employee would have received had
she not become pregnant and gone off work. The
discussion in the Supreme Court's judgment in the Brooks
case relating to the burden of the costs associated with
procreation provides a philosophical basis for this
contention. (Arguably the judgment makes an even
stronger case for governments, acting on behalf of
society generally, to assume a greater proportion of the
costs of procreation.) If taken to its logical
conclusion the union's position would appear to require
that an employer "make whole" an employee on maternity
leave and treat her for pay and benefit purposes as if
she was still actively at work.
The Canadia~ Hg~a~ Rights ~¢t prohibits an employer
from differentiating adversely in relation to an employee
based on a prohibited ground of discrimination. To
conclude that this goes beyond requiring that employees
on maternity leave be treated as well as other employees
off work for health-related reasons, and instead requires
that they be treated in the same manner as employees
actively at work, would require that I give the Act an
interpretation much broader than similar provisions have
been given to date. As indicated above, the arbitral
jurisprudence, although limited, has rejected this typ§
of approach. Further, although the Supreme Court of'
Canada in the Brooks case expressed its concern about
pregnant women bearing a disproportionate amount of the
costs of procreation, it did not adopt the approach being
advanced by the union. Instead the court held only that
employees on maternity leave were entitled to be treated
in a manner similar to other employees who were off work
for health-related reasons.
I recognize that the law as it relates to
discrimination on the basis of sex continues to evolve.
For example, in the Brooks case the Supreme Court of
Canada repudiated is earlier decision in Bliss v. A.-G.
Can. (1978), 92 D.L.R. (3d) 417, [1979] 1 S.C.R. 183,
[1978] 6 W.W.R. 611, wherein it had held that a provision
of the Unenlployment Insurance Act. 1~7~ which restricted
the eligibility of pregnant women to unemployment
benefits was not discrimination on the basis of sex. At
least at this point in the evolution of the law, however,
I am unable to conclude that the Canadian Huma~ Right{
~ goes beyond requiring that for vacation entitlement
purposes employees on maternity leave be treated as well
as employees off work for other health-related reasons
and instead requires that they be treated in the same
manner as if they were still actively at work.
55. It was submitted that the position of the Union in this case
was exactly the one rejected by the board in the Canadian Airline~
case and the eases relied upon in that decision: that it wished the
employer to treat employees in receipt of W.C.B. benefits as if
they were actively at work.
55
56. Reference was also made to the Glenhaven M~nor Corp. case that
was referred to in the Cana4ian International case. In that case,
the issue, as stated by the arbitrator, at p. 62, was:
.... whether, in relation to the past practice of the
Employer of pro-rating the vacation benefits of employees
while they were on unpaid maternity leaves, such past
practice is illegal under the Human Rights Act [?]
57. The position of the'union was stated at p. 64: ~
Counsel for the Union, citing and relying upon
Brooks v. Canad~ Safeway Ltd. (1989), 59 D.L.R. (4th)
321, [1989] 1 S.C.R. 1219, ~1989] 4 W.W.R. 193 ... argued
that by prorating the vacation benefits of the Grievor in
relation to time she was absent from work on an unpaid
maternity leave, the Employer was discriminating against
the Grievor in conditions of employment because of her
sex in refusing to provide her with "unprorated" benefits
during such absences. Counsel argued that this "denial"
or "discrimination" violated s.llA(1)(~). Additionally,
counsel for the Union argued that this same action by the
Employer was a "denial" or "discrimination" in conditions
of employment because of the Grievor's marital status,
thus violating s. llAB. Moreover, arguing that pregnancy
is a "physical disability" within the definition of that
phrase in s. llB(2), counsel urges that the Employer
violated s. llB(1)(~) in discriminating against the
Grievor because of her pregnancy. Similarly (and
finally), counsel argued that, since pregnancy is a
"physical disability" within the meaning of s. llB(2),
the Employer was discriminating against the Grievor in
conditions of employment because of physical disability
(pregnancy), thus violating s. ilC(i)(~).
58. At p. 67 of the Glenhaven case, the majority of the board
stated:
To recapitulate: in Brooks an employee who was
absent from work caused by her pregnancy was totally
disentitled to all accident and sickness benefits for a
17-week period even though al!. other female and male
employees had full benefits for all other accidents or
sicknesses that caused their absences. In our situation,
all employees who took a~y unpaid leave of absence were
treated exactly the same: their vacation benefits - as we
have explained them - were prorated. The question, then,
that one must determine is whether the facts of our case,
which, on the surface, are obviously different from,
indeed the opposite to, those in Brooks, are caught
within the scope of the Brooks ruling of the Supreme
Court of Canada.
(Emphasis in original)
59. At pp. 68-72 of the Glenhaven case, the majority of the board
stated:
To return, then, to what we regard as the crux of
the case "against" the Employer: the question is whether,
the unintended' consequences of the Employer's policy of
prorating vacation benefits -- as it has been applied to
females on maternity leave -- violates s. llA(1)(~) of
the H.R. Act. We say "unintended" while noting with
approval the unambiguous conclusion of the court in
Brooks [(1989), 59 D.L.R. (4th) 321] that intent was not
a required element of discrimination ....
This brief excerpt brings us to the main point. In
Brooks, a pregnant woman was denied the same treatment,
i.e., had imposed on her "a restrictive condition not
imposed on other" employees, In our case, a pregnant
woman was treated exactly the same as every other
employee. On its face, then, such an employee as the
Grievor was D~_% discriminated against at all let alone on
the basis of sex, which is the sole undealt with ground
alleged by the Union. The Brooks case is relevant here
as the court provided a definition of "discrimination"
that, in our opinfon, justifies our conclusion that the
grievance must be denied. Dickson C.J.C. quoted the
following passages, at pp. 331-2, from the judgment of
McIntyre J. in the Andrews case where the meaning of
"discrimination" was considered. MacIntyre J. said
(p. 331):
What does discrimination mean? The most
recent pronouncement on this point will be found in
the judgment of my colleague, McIntyre J. in
Andrews v. Law Society of B.C. (1989), 56 D.L.R.
(4th) 1 at pp. 16-8, [1989] 1 S.C.R. 143, 34
B.C.L.R. (2d) 273:
"what does discrimination mean? The
question has arisen most commonly in a
consideration of the Human Rights Act and the
general concept of discrimination under those
enactments has been fairly well settled.
There is little difficulty, drawing upon the
cases in this court, in isolating an
acceptable definition. In Re Ontario Human
Rights Com'n and Simpsons-~ear~ Ltd. (1985),
23 D.L.R. (4th) 321 at p.332, [1985] 2 S.C.R.
536 at p. 551, 9 C.C.E.L. 185, discrimination
(in that case adverse effect discrimination)
was described in these terms:
"'It arises where an employer ... adopts
a rule or standard ... which has a
discriminatory effect upon a prohibited
ground on one ,employee or group of
employees in that it imposes, because of
some special characteristic of th~
employee or group, obligations,
penalties, or restrictive conditions not
imposed on other members of the work
force. '"
{p.332):
"A thorough study of "systemic discrimination" in
Canada is to found in the Abelta Report on equality
in employment. The terms of reference of the Royal
Commission instructed it "to inquire into the most
efficient, effective and equitable means of
promoting employment opportunities, eliminating
systemic discrimination and assisting individuals
to compete for employment opportunities on an equal
basis." (Order in Council, P.C. 1983-1924 of June
24, 1983). Although Judge Abella chose not to
offer a precise definition of systemic
discrimination, the essentials may be gleaned from
the following comments, found at p.2 of the Abella
Report.
"'Discrimination ... means practices or
attitudes that have, whether by design or
impact, the effect of limiting an individual's
or a group's right to the opportunities
generally available because of attributed
rather than actual characteristics.
"' It is not a question of whether this
discrimination is motivated by an intentional
desire to obstruct someone's potential, or
whether it is the accidental by-product of
innocently motivated practices or systems. If
the barrier is affecting certain groups in a
disproportionately negative way, it is a
signal that the practices that lead to this
adverse impact may be discriminatory.'"
"There are many other statements which have aimed
at a short definition of the term discrimination.
In general, they are in accord with the statements
referred to above. I would say then that
discrimination may be described as a distinction
whether intentional or not but based on grounds
relating to personal characteristics of the
individual or group, which has the effect o'f
imposing burdens, obligatigns, or disadvantages on
such individual or group not imposed upon others,
or which withholds or limits access %~
opportunities, benefits, and advantages available
to an individual solely on the basis of association
with a group will rarely escape the charge of
discrimination, while those based on an
individual's merits and capacities will rarely be
so classed."
Applying the above indicia and/or "definitioas" of
"discrimination", can it be said that the Employer's
policy (of prorating vacation benefits for women during
their unpaid leaves of absence because of pregnancy), is
a "rule or standard ... which has a discriminatory effect
upon a prohibited ground [sex] on one employee ~'[the
Grievor] or group of employees [pregnant females] in that
it imposes, because of some special characteristic
[pregnancy] of the employee or group, obligations,
penalties or restrictive conditions [disentitlement to
full vacation benefits while on maternity leaved not
imposed on other members of the work force"? So phrased,
the answer is patent: all employees, male, female,
pregnant and non-pregnant, are subject to the same
restriction. Accordingly, there is no discrimination at
all. A similar conclusion is arrived at if one applies
the last definition given above in the last-quoted
passage. However, the analysis of discrimination by the
Supreme Court is necessarily more sophisticated than is
reflected by the foregoing. Indeed, to sar that the
practice of the Employer applies equally to all
"similarly situated" persons would dramatically narrow
the purpose of human rights legislation. McIntyre J.
rejected, in Andrew~, the test of "similarly situated
persons" (as a basis for the legality of otherwise
discriminatory conduct or attitudes), by saying at pp.
12-13 of the Andrews case, quoted approvingly by Dickson
C.J.C. in Brooks at p.341:
"'Thus, mere equality of application to similarly
situated groups or individuals does not afford a
realistic test for a violation of equality rights.
For, as has been said, a bad law w~ill not be saved
merely because it operates equally upon those to
whom it has application. Nor will a law
necessarily be bad because it makes distinctions.
"A similarly situated test focussing on the
equal application of the law to those to whom it
has application could lead to results akin to those
in B~i~s v. A.-G~ Can. (1978), 92 D.L.R. (3d) 417,
[1979] 1 S.C.R. 183, [1978], 6 W.W.R. 711 ....
In sum, just as it is no answer to a "charge" of sex
discrimination that one did not intend it, so too is it
no answer to say that everyone is in the same class
(females) or subclass (pregnant females) is treated the
same. This argument is rejected by Dickson C.J.C. in his
quotation, at p.342 D.L.R.,~ from David Pannick [Sex
Discrimination Law, Clarendon Press, Oxford (1985) :
"... But it is important to note that direct
discrimination exists not merely where the
defendant applies a criterion that less favourably
treats all women. It also exists where special,
less favourable, treatment is accorded to a class
consisting only of women, albeit not all women.
Suppose an employer announces that it will employe~
any man with stated qualifications but only a woman
who has those qualifications and who is over six
feet tall. Albeit not all women are excluded;- the
employer has directly discriminated against women
because it has imposed a criterion which less
favourably treats a class composed entirely of
women."
All of the foregoing reinforce us in our conclusion that
the "rule",."policy" or "practice" of the Employer does
not amount to discrimination based on sex. Indeed, the
more one examines the policy, the clearer it is that no
discrimination has occurred at all. Unlike Mrs. Brooks
who was denied benefits available to everyone, the
Grievor was not denied anything that was not denied
equally to all other employees, male, and "unpregnant"
females. The only circumstance in which this conclusion
would have to be changed or at least reconsidered would
be if for all practical purposes, there was no other
application of the policy save to pregnant females. Thus
although the Agreement, by art. 14.05, authorizes an
unpaid leave of absence for any reason "as mutually
agreed" and does not, apparently, treat such leaves any
differently in terms of prorating vacation and other
benefits than it does maternity leave which is mandated
by provincial law, if the evidence was clear that the
policy,of proration of benefits applied in fact only to
maternity leave, this indirect type of discrimination
would be unlawful as it falls within the spirit of the
Brooks judgment. We have no such evidence or even the
suggestion of such evidence.
In conclusion and to recapitulate: in our opinion,
while discrimination based on pregnancy would be
discrimination based on sex and therefore illegal, there
is neither directly nor indirectly any discrimination
whatsoever whether based on sex, on marital status or on
physical (or mental) disability 'in the Employer's policy
of prorating vacation benefits for females on materni%y
leave. It is important to recognize that no
"obligations, penalties, or restrictive conditions" are
imposed on either the Grievor or on pregnant females or
on females generally'that is not imposed on everyone in
the bargaining unit. Nor is this a case where the
Employer applied a criterion that "less favourably treats
all women" or "where special, less favourable treatment
is accorded to a class consisting only of women, albeit
not all women". In short, there is not discrimination
between pregnant women and anyone else either directly or
indirectly.. Finally, there is no evidence that the
policy of proration imposes an unfair disadvantage on
that group in society called pregnant women such as might
t~igger the need for some affirmative or at least
neutralizing action in order to fulfil or further the key
purpose of anti-discrimination legislation, which is to
remove.such unfair disadvantages. (Emphasis in original)
60, Reference was also made to Kennedy HoRse Youth Ser¥ice~ Inc.
IAjax) Rotherglen Centre, being an unreported decision, dated
November 22, 1993, of the majority a board chaired by Professor
G.J. Brandt.
61. In that case, the provision for interpretation was:
An employee's vacation entitlement (pay plus time
off) shall be proportionately reduced for absences due to
unpaid illness (including Workers Compensation), leaves
of absence or other unpaid periods which exceeds thirty
(30) cumulative days during the twelve (12) months during
which the employee is qualifying for vacation.
61
(Emphasis added in original)
62. Art. 301 of the collective agreement in the Kennedy House case
is as follows:
The Employer and the Union agree that there will be
no intimidation, discrimination, interference, restraint
or coercion exercised or practised by either of them or
by any of their representatives or members because of any
employee's membership or non-membership in the Union or
because of his activity or lack of activity in the Union.
63. The union, in Kennedy House, alleged that the employe~'~
unlawfully reduced the vacation entitlement of the grievors because
of their participation ~n a lawful strike.
64. The position of the union is set out at pp. 16-17 :
The union argues that Article 3.01 should be
interpreted as prohibiting not only intentional
discrimination but also adverse effect discrimination as
has been done under Human Rights legislation. In Re
Ontario Human~Rights Commission ~t al and Simpsons-Sears
Ltd. (1985), 23 DLR (4th) 321 the Supreme Court of Canada
accepted that adverse effect discrimination could occur
where an employer for genuine business reasons adopts a
rule or standard which, while neutral on its face and
apparently equally applicable to all employees,
nevertheless has a discriminatory effect upon a group of
employees through the imposition on them of certain
obligations or restrictions that are not imposed on
others. It is submitted in this case that the general
language of Article 15.05 differentially impacts on
employees engaged in activity that is otherwise lawful
activity protected under Article 3.01.
65. At p. 19 of the Kennedy House case, the majority of the board
stated:
... Thus, not only those who did not work during the
strike suffered a reduction in their vacation
entitlement. Had that been the situation the union's
case may have been more compelling. However, there were
people who worked during the strike bug who had their
vacation entitlement reduced for other reasons,
specifically an absence while on workers' compensation.
What this indicates it that the company applied Article
15.05 to absences which fell within its scope.
66. Further at pp. 19-20 , the majority of the board stated:
One of the types of absence which will lead to a
reduction is vacation entitlement is one that is due to
an "other unpaid period". Admittedly this language is---
far reaching but it is languag,e that the parties have
negotiated and nothing in the evidence indicates that the
union sought to narrow the scope of that language in a~
way. The phrase "other unpaid period" could apply to a
number of situations. It is unnecessary here to
speculate what those might be. It is sufficient to state
what is obvious, viz, that it is language which at least
includes unpaid periods when an employge is on a lawful
strike. The important point however is that this is not
the only situation in which that language.could apply.
Thus, employees to whom this clause applies do not suffer
a reduction in their vacation entitlement because 6f
their participation in union activity. Rather, they
suffer the loss because of their absence for an unpaid
period which in this instance happens to be a strike but
which can and does include other unpaid periods.
(Emphasis in original)
67. At pp. 20-23, the majority of the board in Ke%nedy Hous~
stated:
In Re S~mpson~-Sears (supra) the Court characterizes
the aim of human rights legislation as the removal of
discrimination which aim is to be accomplished not by
punishment.of the discriminator but rather by providing
relief for the victims of discrimination. Proceeding
from this starting point it follows naturally that it is
the result or the effect of the action that is important
and not the motives behind it.
This reasoning cannot be incorporated, without
qualification, into the interpretation of a collective
agreement. While it may be the case that provisions like
Article 3.01 have as their aim the elimination of
discrimination, they must be construed in the larger
context of the collective agreement. They exist in
association with other provisions that serve other
interests and must be interpreted in such a fashion as to
give reasonable meaning and application to all provisions
of the agreement.
Article 15.05 clearly reflects the view that has
long been endorsed by arbitrators that vacations are an
earned benefit, a benefit whose enjoyment is contingent
on the employee having "worked" (Re City of Victoria and
CUP~ (1976), 14 LAC (2d) 90 '(Borowicz); or been in
"active employment" (Re Sir Sandford Fleming College and
SEI~ (1982), 5 L.A.C (3d) 390 (O'Shea); or being "in
service" (Re Catholic Children's Aid Society of
Metropolitan Toronto (1975), 9 LAC (2d) 374 (Weatherill).
These parties have expressed t~at concept by language
which provides for a reduction in vacation credits or
entitlement for periods during which the employee i~
absent due to illness (including compensable injuries),
leave of absence or "other unpaid periods". These are
periods when, by definition, the employee is not working
and is not thereby earning the vacation entitlement.
(See also S~r Sandford Fleming College (supra) and Re
Hants Community Hospital and Nova Scotia ~urses Union
(unreported, Larkin) for examples of collective agreement
provisions in which vacation entitlement is reduced in a
manner that is proportionate with absence from work.)
In this case the company considered the strike to be
an "other unpaid period" and reduced the vacation
entitlement accordingly. There is no basis upon which
that determination can be challenged. It is axiomatic
that a strike is a period during which employees (who
honour the picket line) are neither at work nor paid. It
is a period which is "unpaid" and one for which the
company may, quite properly, proportionately reduce
vacation entitlements.
To interpret Article 15.05 as including periods
during which employees are engaged in a lawful strike
does not deprive Article 3.01 of application. Article
3.01 requires that the. action alleged to be
discriminatory be taken "b~cause of activity..." in the
union. In this case it cannot be said that vacation
entitlement was reduced because of activity in the union.
Rather, it was reduced because the grievors were absent
from work during an "unpaid period". It is true that the
grievors were unpaid because (sic) the strike. It is
also the case that this circumstance triggered the
application of Article 15.05. It does not, however,
follow that they were therefore denied their vacation
entitlement because of their activity in the union.
Article 3.01 does not, in our opinion, mean that
employees are necessarily immune from the general
application of collective agreement provisions where the
,' context in which 'those provisions are applied includes,
but is not restricted to, activities in support of the
union. (Emphasis in original)
68. As noted, the position of the Employer in the case before us
is that the Union was, in effect, asking this Board to find that
employees absent from work for more than one month while in receipt
of W.C.B. benefits, because they have a handicap under the Code are
entitled to the same treatment as persons who are not absent for
more than one month, and that failure to afford them the same
treatment amounts to adverse impact or constructive discrimination
that is prohibited under ~. 11 (1) of the Code.
69. It was submitted that none of the cases cited stand for this
proposition and if they did then an employee in receipt of W.C.B.
benefits would also be entitled to payment of full wages for the
time he/she was absent from work and in receipt of such benefits.
This position was said to be clearly wrong because payment of wages
is tied to an employee being at work and the article relating to
payment of wages applies equally to all employees.
70. It was submitted that the Union ignored the fact that art.
14.06 applies equally to all persons, that it is tied to the
concept of time worked, and that it relates the amount of benefit
to time worked through the means of pro-ration. The article
applies, it was stated, to "everybody including the class of
persons the Union says are disadvantaged."
65
71. The short position of the Employer was that art, 14.06 takes
away no substantive right that is available to other employees,
such as the right to rely upon a just cause provision of the
collective agreement.
Reply of Union
1. It was agiain submitted that the Code prohibits discrimination
on the ground of handicap, and this means that the Employer must
ignore the absences of more than one month of an employee when in
receipt of W.C.B. benefits and must treat him/her as if he/she was
at work so as not to distinguish him/her from employees who are not
absent from work for over one month. This submission was said to
apply to'any provision that pro-rates entitlements in the case of
employees who are found to suffer from a handicap recognized by the
Code. it was'submitted that if the Union position was incorrect
there would be no reason to enact s.10(1)(e) of the Code.
2. It was emphasized that the Union was not seeking a
"gratuitous" benefit, but merely sought the same entitlement to
vacation pay for employees absent for more than one month who were
in receipt of W,C.B. as was received by employees who were not
absent from work for more than one month.
66
3. Reference was made to Pezuk, 2550/92 (Dissanayake). In that
case, which was heard pursuant to the expedited arbitration
procedure contained in the collective agreement, it was noted that
the grievor commenced employment with the Ministry of Health on
February 28, 1966, and from February 1983 until his retirement on
November 30, 1992 was in receipt of Long-Term Income Protection
(LTIP) benefits in accordance with the collective agreement. The
grievance 'arose out of a dispute between the parties as to the
extent of the grievor's period of continuous service for the
purpose of calculating his severance pay entitlement under the
collective agreement. The relevant part of the provision reads:
53.6 For the purposes of determining qualification for
severance pay and the amount of severance pay to which an
employee is entitled, an employee's continuous service
shall not include any period:
(b) When he is receiving benfits under the Long
Term Income Protection Plan ....
4. Pursuant to art. 53.6(b), above, the employer excluded the
period during which the grievor was in receipt of LTIP benefits
from his period of continuous service for the purpose of
calculating his severance pay entitlement. The union agreed that
the employer had complied with art. 53.6(b; and had no claim that
the collective agreement had been contravened. It was the union's
position that the grievor came within the "handicap" provision of
art. A.I.1. of the collective agreement: that by disregarding the
period during which the grievor received LTIP benefits, the
employer had penalized him, and that this constituted
67
discrimination because of handicap; which is a prohibited ground of
discrimination under art. A.I.1 and under the C__~. On that basis,
the union submitted that the arbitrator should declare art. 53.6(b)
to be null and void and direct the employer to consider the period
in question as part of the grievor's period of continuous service.
5. In the Pezuk case, the employer did not seriously challenge~
the union's contention that the article in question was contrary to
the prohibition against discrimination "because of handicap"
contained in the ~Q_~. ~here, the employer's representative argued
%hat the fact that the grievor was treated differently than other
employees is no cause for concern because collective agreements
commonly treat different types of employees in different
circumstances in different ways.
6. The arbitrator stated, at pp. 5-6:
... It is true that there is nor requirement generally
that all employees, no matter what the circumstances are,
must be treated equally in a collective agreement.
However, what the H~man Rights Code and article A.i.1.
require is that any discriminatory treatment of employees
not be based on a prohibited ground, one of which is
handicap.
Based on the facts and the submissions I received,
I find that the result of enforcing artice 53.6(b) is to
discriminate against the grievor because of handicap,
which is a prohibited ground under the Human Right~
Code, which is incorporated in the collective agreement
through article A.i.1.
68
Discus${Qn and De¢~s{on
1. The Union acknowledges that the issue in the case before us is
not whether the employees in receipt of W.C.B. benefits, who are
absent from work for more than a month and have their vacation pay
entitlement pro-rated pursuant to article 14.06 are, thereby,
directly discriminated against contrary to the provisions of the
Code because of handicap, but whether they are being constructivel.3.
discriminated against contrary to the provisions of sec. 11 of the
Code.
2. The submissions of the Employer relied on a number of cases
where the facts disclosed that the grievors were treated in the
same way as all other employees by the clause which was said to
have discriminated against them contrary to the provisions of the
Code.
3. One difference between the cases relied upon by the Employer
and the case before us is that there is one class of employee that
is not treated the same when absent for more than one month:
employees absent during "normal periods of maternity." Does this
difference affect the result in this case?
4. It is important to note that the Union did not rely on the
fact that, in the administration of article 14.06, employees
absent as a result of "normal periods of maternity" for more than
69
one month were treated differently from employees absent for more
than one month who received W.C.B. benefits. The essential
argument of the Union was that employees receiving W.C.B. benefits
and absent from work for more that a month, who were recognized as
having a handicap for the purposes of the ~Q_~, were not treated in
the same way as employees who were not absent from work for more
than one month.
5. The Union did not rely on an argument based on the exclusion
from the operation of art. 14.06 of persons absent during normal
periods of maternity, a~d in the absence of such an argument being
made this decision is limited to a consideration of the arguments
actually presented to us.
6. In order to establish a violation of sections 5(1), 9, and 11
of the Code, it is, of course, not enough for an employee with a
handicap recognized under the Code to suffer adverse consequences
as a result of the implementataion of the provisions of a clause in
a collective agreement affecting him/her. One of the difficulties
in cases involving allegations of illegal discrimination under the
C~de is the absence of any definition in the ~ of what is meant
by "equal treatment ... without discrimination" which a person with
a handicap is entitled to under section 5 of the Code.
7. It is necessary to recall that constructive or adverse impact
discrimination recognized in s. 11 of the Code refers to rights of
7O
persons under Part I of the Code. We are dealing with an alleged
violation of the provisions of s. 5(1) of the ~_Qde, in this case to.
the affected employees': "... right to equal treatment with respect
to employment without discrimination because of ... handicap."
Unless the lack of "equal treatment with respect to employment
without discrimination" is "because of~ ... handicap," there can be
no violation of the provisions of s. 5(1), whether the
discrimination is direct or adverse effect discrimination. That.
is, the fact that a person has a handicap under the Code and is
adversely affected by some requirement, qualification or factor
imposed by an employer that results in his/her exclusion or
restiction does not inevitably lead to the conclusion that he/she
has been discriminated against because of handicap.
8. In O'Malley, at p. 332 (D.L.R.), this is made clear in the
case of direct discrimination:
Direct discrimination occurs in this connection
where an employer adopts a practice or rule which on its
face discriminates on a prohibited ground. For example,
"No Catholics or women or no blacks employed here."
It is obvious that such a practice or rule discriminates against
women because of their sex and blacks because of their colour.
That is, the discrimination amounts to a violation of s. 5(1) of
the Code because the employees have not been afforded "a right to
equal treatment with respect to employment without discrimination
because of a prohibited ground."
71
9. At p. 332 of OiMalley, the Court states that although there is
a significant difference between direct discrimination and adverse
effect discrimination, in both cases there can be no discrimination
contrary to the provisions of s. 5 of the Code unless it is because
of a prohibited ground. It is the proximate basis for the
discrimination that determines if it is because of a prohibited
ground. Referring to adverse effect discrimination, the Court
states that: ~
· .. It arises where an employer for genuine business
reasons adopts a rule or standard which is on its face
neutral, and which will apply equally to all employees,
but which has a discriminatory effect upon a prQhibited
ground on One employee or group of employees in that it
imposes, because of some special characteristic of the~
employee or group, obligations, penalties, or restrictive
conditions not imposed on other members of the workforce.
10. When the Supreme Court concluded, at p. 332, that it could
consider adverse effect discrimination as "a contradiction of the
terms of the Code," and that: "An employment rule honestly made for
sound economic or business reasons, equally applicable to all whom
it is intended to apply, may yet be discriminatory if it affects a
person or group of persons differently from others to whom it may
apply," it did not say that adverse effect discrimination could
exist where it did not amount to: "discrimination because of" one
of the prohibited grounds set out in s. 5(1).
Where a case involves persons who have a handicap under the
Code and where they suffer the adverse consequences of a
72
requirement, it is only natural for them to make a link between
their handicap and the~requirement that adversely affects them. It
is by no means an easy task, in ]aw or logic, to detemine whether
the adverse impact was because of a person's handicap or for some
other reason. Although not necessarily so in all cases, we
conclude that the life of the law before us is grounded in logic as
well as experience, it is a logical fallagy to rely on a post hoc
argument'that because an event appears to follow another that thD.
first event must be the cause of the second. However, the
proximity of events or conditions does not guarantee a causal
relation. With the assistance of the O'Malley case, it is
necessary for us to examine the evidence to determine the causal
connection for ~he detriment suffered by the employees with whom we
are concerned.
11. Although the provision of the Code dealing with adverse effect
discrimination was first enacted after the filing of the complaint
in the O'Malley case (So 10 of the 1981 Codel, and 'although the
section in the Equality Rights Statute Law Amendment Act S.O. 1986,
c. 64 contained several words not used in the former s. 10, and a
new subsection added which explicitly established the duty to
accommodate to the point of undue hardship, the authority of
O'Malley to the facts before us remains unaffected. In Keene,
Human Rights In Ontario (2nd Ed.) at p. 124, it is noted that:
The O'Malley judgement was welcomed as a siqnificant
step in the task of defining the scope of the term
discrimination. However, the Ontario Legislature had
anticipated the Supreme Court of Canada in enacting a
provision which specifically prohibits adverse-effect
discrimination, effectively doing away with the debate as
to whether such discrimination is prohibited by Ontario
law. An amendment of this provision established the same
limit to the protection as that used by the Court in
O'Malley.
12. The issue before the Board is whether the provisions of
art. 14.06, which was not disputed as being a "rule honestly made
for sound economic or business reasons," w~s discriminatory in the
sense that it affected "a person or group of persons differently~
from others to whom it may apply." There was some difference
between the parties as to whether art. 14.06 was "equally
applicable to all t° whom it is intended to apply." We find that
art. 14.06 was intended to apply to all employees. For the
purposes of this case, and for the reasons above stated, we do not
have to consider the effect of art. 14.06 "excluding normal periods
of maternity,"
13, The concepts included in a person's "right to equal treatment
with respect to employment without discrimination because of Ia
prohibited ground]," are extremely subtle and complex. The
expectation that one can find a universal one-size-fits-all-
situations rule are, like the fantasy of one-size-fits-all
pantyhose, is usually destined to fail.
14. The Glengarry case relied upon by the Union did not differ in
its conclusion with our identification of the question for
determination: "'i' whether the grievor was in fact, treated
differently or unelqually because of her handicap." (At p. 331)
15. We do not have to deal with the criticism of the decision in
Glengarry as set out in Canada P~ckers. What is important, for our
purposes, is the reasons given by the board in Glengarry for
finding that the grievor was treated d%fferently or unequally
because of handicap. Although the board, in Glengarry, found tha~.
the grievor was not treated differently from other employees absent
for six months due to sickness or accident, she was found to have
been treated diffe~ently from "the majority of the employee~ in the
bargaining unit a]~d that difference in treatment was due to her
absence which in turn, was due to her compensable injury." {at
p. 332). The bas~s for the decision was the finding that:
Th~se other employees are entitled to the benefit of
the standard of "proper cause" for termination which
entitles an employee to test the employer's application
of that standard at arbitration, bringing to bear all of
the established arbitral principles and policies
applicable to innocent absenteeism in general. (Ibid.)
The grievor was, therefore, found to have been subject to unequal
or different treatment from the majority of the bargaining unit
employees with r~spect to her employment. The relevant legal
principles stated by the board in Glengarry were approved of in
Canada Packers, although there was a disagreement with the
"conclusions and logic which follow this analysis of the issues
.... " (Canada Pa~kers at p. 212.)
75
16. The Martin case, also relied upon by the Union, does not
disagree with our'understanding of the approach to be followed in
cases such as the one before us. At p. 20, the board referred to
the purpose of the legislature in addressing W.C.B. injuries and
disabilities in a separate paragraph:
The legislative purpose was to ensure that the
prohibited grounds in section 10(1)(e), namely the
suffering of an injury of (siq) disability for which
compensation is received under the Workers' Compensation
Act, will not be the proximate cause of any decision~
adversely affecting such employee.
Authority for this position was Re Gaines Pet Foods
(unreported decision dated April 28, 1992, Board of Inquiry chaired
by Professor G.F. McKechnie). At pp. 20-21, the board in Martin
stated:
... There the complainant had a lengthy absence from work
due to cancer, which all parties agreed was a handicap
within the meaning of the Code. Following surgery, she
returned to work with no apparent effects of the surgery
or her cancer. However, subsequently she had a number of
absences which were not related to any handicap. She was
dismissed for excessive absenteeism. She alleged that
she had been discriminated because of handicap contrary
to the Code.
The Board of Inquiry dismissed her complaint. In
doing so, at p. 34, it observed:
Firstly, if the employer is to be held to a strict
accounting of the absence related to cancer, as
suggested by the Commission, the Respondents could
never discharge Ms. Black because one of the
absences would always be the absence due to cancer.
That absence cannot be expunged because it in fact
happened, it is well encapsulated and it forms part
of a long history of absences of various reasons.
Secondly, if that absence were in ~n~ of itself the
proximate cause or the direct cause of discharge, a
violation of the Code could be found: however, the
facts point in the opposite direction. The
termination of Ms. Black's employment followed an
absence of approximately forty days because of a
neck and shoulder injury. Given her past record of
absences, for a variety or reasons, only one of
which was related to cancer, one could easily find
that this Complainant was unable to present
evidence that would give anyone assurance that she
could be an attendant employee in the future.
(Emphasis added in Martin)
17. At p. 22 of Martin, the board stated:,
In other words, the protected absences were not
proximate cause of the employer's decision. While the
Board held that the employer was not required to remove
the cancer related absences from the overall
consideration of her absenteeism record, it was expressly
held that "if the cancer r~lated absence had been the
cause of the termination, or a proximate cause of the
termination, the Respondents could have violated the
Code." (At pp. 34-35).
18. At pp. 22, the board in Martin found that unlike the Gaines
Pet Food case, the handicap in the case before it related to
absences that "were a proximate cause if not the primary cause for
the employer's decision."
19. The board in Martin, referred to the ~lengarry and Clarke
Transport cases, the latter case being one where the arbitrator
agreed with and adopted the analysis in Glengarry, and the board in
Martin found the facts before it to.be "analogous." (At p. 26).
20. The board, in Martin, not only found direct discrimination
because of handicap, but also constructive discrimination because
of "the application of the employer's attendance policy, without
excluding WCB absences." (At p. 29). That is, the adverse impact
77
on the grievor was because of his handicap, which finding was based
on the facts in that case.
The Divisional Court allowed an appeal from the decision of
the Board of Inquiry in Gaines: 16 O.R. (3d) 290, after concluding
that the "proximate if not the primary cause of the restrictive
condition was the complainant's absence due,to her disability. The
complainant's termination was directly and substantially linked to
the imposition of the discriminatory condition." [Headnote]
21. In Union Grievance, relied upon by the Union, the violation of
art. A-1 of the collective agreement, which incorporated the ~L~,
was found on the basis that the affected employee, being a
"claimant under the Workers' Compensation Act", was subject "to two
sets of time lines in the potential for immediate arrival at stage
3 [which produced] a discriminatory result for this employee
group .... " It is significant that the Board in Unio~ Grievance
did not find that any form of monitoring would be discriminatory,
and it ordered, at p. 14, that the employer "begin to develop a
calculation system which minimizes the discrepancies in arrival at
the thresholds .... and, that claimants under the Workers'
Compensation Act cease to be monitored by the fixed-threshold
system effective the date of this award." Therefore, the Board
concluded that differential treatment of persons in receipt of
W.C.B. benefits might not amount to discrimination because of
handicap.
78
22. Counsel for the Employer, in referring to the City of
Stratford case, noted that the arbitrator in the North Bay ~o~pital
case, referred to in the Stratford case, had also "adopted Mr.
Hinnegan's logic [in Glengarry]" (at p. 6).
23. The danger of trying to apply a general formula to the various
kinds of cases that arise for adjudication where the issue is
whether there has been adverse effect discrimination i~s
demonstrated in the Emerson E~ectric case relied upon by the Union.
In that case, at p. 8, the board of inquiry stated:
... Thus, what needs to be proven for a case of
constructive discrimination is evidence that:
1. a requirement, qualification or factor in
itself not discriminatorY on a prohibited
ground does exist;
2. the existence of this requirement,
qualification or factor adversely affects a
person or group of persons identified by a
prohibited ground of discrimination; and
3. the complainant as a member of the protected
group has been adversely affected by the
requirement, qualification or factor.
24. Applying the above formula to the facts of the case before us,
we find that art. 14.06 establishes "a requirement, qualification
or factor in itself not discriminatory on a prohibited ground .... "
Art. 14.06 must be read along with art. 14.01 which sets out the
entitlement of employees to vacation pay, and the requirement,
qualification or factor in art. 14.06 is that an employee will not
collect full vacation pay if absent from work for more than one
month in the contract year, but will only receive vacation pay, in
79
those circumstances, on a pro-rata basis. On its fac'e, art. 14.06
does not discriminate against any' employee on the ground of
handicap. Thus, the first part of the test in the formula is
satisfied.
25. In operation, the existence of the requirement with respect to
attendance at work under art. 14.06 adv~rsely affects employees
absent for more than one month and in receipt of W.C.B. benefit~,~
who, it was acknowledged, represent employees identified by a
prohibited ground of discrimination. Accordingly, the second part
of the test in the formula is satified.
26. Employees absent from work for more than a month and in
receipt of W.C.B. benefits have been adversely affected by the
requirement set out in art. 14.06. It follows, if the test set out
in the formula is valid, that the the employees with whom we are
concerned have suffered adverse impact discrimination contrary_to
the provisions of sec. 11 of the Code.
27. We are not persuaded that such a mechanical approach is proper
in all cases where the issue is whether there has been adverse
effect discrimination. If it was, an employee absent-for more than
one month while in receipt of W.C.B. benefits, for example~ an
employee absent for the entire year in those circumstances, could
claim that the formula applies equally to his situation when he
claims a violation of articles 5 and 11 of the C0d~ because he has
80
not been paid for all' hours that he would have worked but for his
handicap, notwithstanding that the restriction complained of was
imposed on all members of the bargaining unit. Keene, whose
statement at p. 26 of Human Rights in Ontario (2nd ed.) was relied
upon by the board of inquiry in Emerson Electric as establishing
"the elements of a prima facie case under s. 11" notes, at (pp.
126-127), that a requirement qualificatiop or factor, under the
previous wording of s. 10 referred to "'requirements' such as dress
codes or uniforms that forbid beards, turbans or the wearing of
certain religious symbols, and work schedules too rigid to allow
for religious observances. Due to the substitution of the word
'exists' for 'is imposed' in the former version, there will be less
need for debate as to the liability of a respondent in respect_.of
unwritten rules, ad hoc managerial decisions, and 'shop-floor
understandings' that effectively discriminate." (Citations omitted)
28. Employing the formula in Emerson, which adopted the formula
set out by Keene, we believe it can be taken that the Employer has
a requirement that all employees, in order to be paid the wages set
out in the collective agreement in Schedule "A," must be at work
for all hours claimed. On its face this requirement is not
discriminatory on a prohibited ground.
The existence of the requirement adversely affects employees
with a handicap recognized by the Code, such as the employees with
whom we are concerned, who are persons identified by a prohibited
81
ground of discrimination, if the requirement in art. 14.06
adversely affects the persons with whom we are concerned according
to the second part of the formula, then it must apply equally to
the example given in the case of the same employees claiming that
they were discriminated against because they were not paid the
amounts that they would have received if they had not been
handicapped and had worked.
29. The employees with whom we are concerned are members of a
protected group that has been adversely affected by ~the
requirements set out in the second part of the~formula. If the
employees with whom we are concerned are entitled to vacation pay
that is not subject to a pro-rata adjustment, the~ the employees in
the second example are entitled to the payment of all monies that
they would have received but for the fact that their handicap
prevented them from'working.
We doubt that such a claim would ever be made, not because it
fails to qualify under the formula, but because it would appear to
be highly unlikely that the Legislature or the courts intended
adverse impact discrimination to encompass such a situation.
Keene's formula was said to be based on the statement of the
Supreme Court of Canada, in O'Malley, set out at para. 9 at p. 71
above, but it overlooks the concluding words "not imposed on other
members of the work force."
82
30. There appears to be an assumption in the cases relied upon by
the Union that the provision in the collective agreement claimed to
conflict with the provisions of the Code is one that either
directly or constructively adversely affects a protected group
because of their having a characteristic which represents a
prohibited ground of discrimination. We do not say that the
decisions arrived at in each of the cases ~elied upon by the Union
are incorrect, and we do not feel that any of the tribunals differ,
from us in formulating a requirement that: "Every person has a
right to equal treatment with respect to employment without
discrimination because of ... handicap [in the case before us]."
(Emphasis added.) In each case the tribunal that has to answer the
question must determine whether any unequal treatment found by it
with respect to employment is based on discrimination because of
handicap. As already noted, above, it is easy to see why the
employees affected by the grievance believe that they have been
discriminated against because of their handicaps contrary to the
provisions of the Code. The legislature has only protected
handicapped employees under the code so that they will be paid when
not working, when their not working is a result of their being
discriminated because of their handicap. Where all of the
conditions established by the Supreme Court in O'Malley are not
satisfied what is the result?
Here, even though art. 14.06 was the result of agreement
between the Employer and the Union, it must be regarded as being a
83
"rule or standard" that the Employer has "for genuine business
reasons" made to "apply equally to all employees .... " From the
language employed by the Supreme Court in O'Malley, in order to
establish that an employer has breached the provisions of sec. 11
of the Cod~ and is guilty-of adverse effect discrimination it must
be established that the "rule or standard" that has been adopted
"imposes, because of some special characteristic of the employee or
the group, obligations, penalties, or restrictive conditions not
imposed on other members of the workforce." (Emphasis added) In the
case before'us, not only is the "rule or standard" in art. 14.06
one that has been adopted in good faith ~nd otherwise for "genuine
business reasons," its obligations, penalties, or restrictive
conditions" have been imposes on all "other members of the
workforce."
The provisions of art. 14.06 do not represent an attempt to
create through the use of the smoke and mirrors of collective
agreement draughtsmanship a means of disguising an intent to
discriminate contrary to the Code. (Cf. Brooks at p.D/6195 (CHRR)
referred to at p. 87 below.) The proximate cause of the pro-ration
of vacation pay is not absence when in receipt of W.C.B benefits
for more than a month, absence on jury duty for more than one
month, absence due to non work-related illness or injury for more
than one month etc., but any absence for more than one month. As
the obligations'etc, of art. 14.06 have been imposed on all members
of the work force who are absent from work for more than a month,
84
it cannot be claimed that employees who are absent for more than a
month while in receipt of W.C.B. benefits have been the subject of
adverse effect discrimination because of their handicap.
Keene observes, at p. 116, that in addition to being called
adverse effect discrimination, constructive discrimination has also
been been called disproportionate impact discrimination. Assuming,
without having to decide the point, that we could, on the facts o~
this case, find constructive discrimination on the part of the
Employer if the rule or standard in art. 14.06 had a
dispropotianate discriminatory effect on "one employee or group of
employees .... because of some special characteristics of the employee
or group," by imposing "obligations [or] penalties]" on him/her or
them "not imposed on other members of the workforce," we would only
be able to find unlawful discrimination if all of the required
elements had been considered.
In Malik v. Ontario (Minister of Government Serv~cea) (1981),
2 C.H.R.R. D/374 (Eberts), the complaint was that the
interview/assessment procedure used by the respondents had a
disproportionate impact on persons of pakistani-Muslim ethnic
origin. In the Matik case, at p. D/378, the board of inquiry noted
that the Human Rights Commission had to make out a prima facie case
of "disproportionate impact on the members of [the] protected
group." It was that group and not just the individual complainant,
85
being a member of that group, that had to suffer the
disproportionate impact.
There were statements made by counsel for the Employer, not
objected to counsel for the Union, that were said to indicate that
there was no disproportionate impact on the employees on W.C.B.
(eight of 28 W.C.B. claims during the r~levant period involved
employees absent from work for more than one month). It wou~
appear that there were significantly more employees who had been in
receipt of W.C.B. benefits who were unaffected by art. 14.06 than
those who were. This, however, is no answer to the question before
us, as has been noted above in Brooks and the cases relied on
there, such as Andrews, where the "similairly situated" test was
rejected.
Looking at the question of disprqportionate effect in a
different way, there was no proof that the provisions of art. 14.06
had a greater impact on employees on W.C.B. for more than a month
than they did on all other employees who were also subject to that
article.
31. There is no difference between the meaning of discrimination
in cases where it is alleged that there is direct discrimination
and cases where the allegation is that there has been adverse
effect discrimination. This is made clear in the Brooks case,
where the Supreme Court deals with the meaning of discrimination at
PA. D/6191-2 The Court relied on the reasons of McIntyre in the
A~dr~w~ casel at 173-,75 (S.C.R.), where there is reference to the
O._['Malley,
Thus, for there to be discrimination under the Code there must
be "a discriminatory effect upon a prohibited ground ... because of
s~me special characteristic of the employee or group," which in the
c~se before us would be handicap as recognized by the ~ode.
32. At p. D/6193 of Brooks, the Court stated that it had "no
d~fficulty in concluding that the p~afeway sickness and accident
~an discriminates against pregnant women
P ." At p. D/6194, the
CJurt concluded that "the Safeway plan discriminates on the basis
o~ pregnancy." This must mean because of pregnancy.
33. The Court then dealt with the arguments of counsel for the
r~spondent Safeway in support of the position that the disability
p~an in that case did not discriminate "by reason of pregnancy."
We emphasize that we see no difference between such words as "by
1
reason of" and "because of".
34. One of the bases for finding that the complainants in Brooks
h~d been discriminated because of pregnancy is stated at p. D/6195:
... That the exclusion is discriminatory is evident when
the true character or underlying rationale of the Safeway
benefits plan is appreciated. The underlying rationale
of this is the laudable desire to compensate persons who
are unable to work for valid health related reasons.
Pregnancy is clearly such a reason. By distinguishing
"accidents and illness" from pregnancy, Safeway is
attempting to disguise an untenable distinction ....
It is apparent that the Court focused on a comparison between
employees absent for pregnancy related health reasons and employees
who are absent for health related reasons who are not subject to
the same restrictions as the former group of employee's. That is,
women absent as a result of pregnancy were t. reated differently from
other employees absent for health related reasons unrelated t9
pregnancy.
35. The Supreme Court in Brooks concluded that there was nothing
in the relevant legislation that permitted Safeway to create a
valid distinction between employees covered by the benefit plan
that would not be discriminatory: in the absence of "regulations
under [the provisions of section 7(2) of the Manitoba Human Rights
Act] ... discrimination in employee benefit packages is not
admissible."
36. If we had found that the Union had established a p~jma facie
case of discrimination because of handicap, it would have been open
to the Employer, pursuant to the provisions of s.ll(1)(a) of the
Code, to show that however the restriction in art. 14.06 was
viewed, it was a "requirement qualification or factor [that] is
reasonable and bona fide in the circumstances .... " This exception
was not addressed before us, the position of the Employer being
that the employees with whom we are concerned were not
88
discriminated against contrary to the provisions of s.5(1) or s.
11(1) of the Code, with there being no reliance on the exception,
and no argument was addressed concerning the application of s.
11(2) of the ~ dealing with the requirement "that 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 .... " Cf. The decision of the Divisional Court in City
of Stratford referred to above at p.34. In making this comment w~
are not to be taken as saying that this is a case where some
accommodation could or should have been made under either s. 11(2)
or 17(2i of the Code.
37. The argument that was most relied upon by the Employer in the
case before us was that the application of art. 14.06 was not
restricted to employees who were absent from work for more than one
month while in receipt of W.C.B. benefits but that it applied
equally to all employees.
38. The position of the Employer was that if there was
"discrimination" in the case before us it was permissible because
it applied to all employees and had no disproportionate effect on
employees on W.C.B.
39. In Brooks, the respondent attempted to distinguish between
discrimination based on sex and discrimination based on pregnancy,
which distinction, accepted in Bliss, was rejected.
89
40. In Brooks, at p. D/6201, reference was made to the statement'
of McIntyre J. in Andrews at pp. 167-68 (S.C.R.):
Thus, mere equality of application to similarly
situated groups or individuals does not afford a
realistic test for a violation of equality rights. For,
as has been said~ a bad law will not be saved merely
because it operates equally upon those to whom it has
application. Nor will a law necessarily be bad because
it makes distinctions.
41. McIntyre J. also notes that a "simi'larly situated test in
focussing on the equal application of the law to those to'whom i~
has application could lead to results akin to those in [Bliss]."
?
42. The court in Brooks concluded that the discrimination was
based on sex and not merely on pregnancy.
43. Once there was a finding of discrimination on the basis of
pregnancy in Brooks, the .Court had to decide 'whether such
discrimination amounted to sex discrimination because not all women
are pregnant at any one time. (At po D/6202.) In the case before
us, we do not have to go through such a two step process. The
i~sue is whether art. 14.06 amounts to discrimination because of
handicap. In the Brooks case, the restriction in the Safeway
disability plan affecting pregnant women singled out pregnant women
for discriminatory treatment and the final question for the court
had to do with whether it made any difference that not all women
were pregnant at one time. This is not the case in the matter
before us.
44. The Supreme Court of Canada in O'Malley noted the difference
between a case of direct discrimination and adverse effect
discrimination. In rejecting (at p. 333 S.C.R.) the proposition
that only intentional discrimination was prohibited by the Code,
the Court went qn to state:
While I reject that argument as support for a
limitation of the Code to intentional discrimination, I
do not on the other hand accept,the proposition that on
a showing of adverse effect discrimination on the basis
of religion the right to a remedy is automatic.
No question arises in a case involving direct
discrimination. Where a working rule or condition· of
employment is found to be discriminatory on a prohibited
ground and fails to meet any statutory justification
test, it is simply struck down .... In the case of
discrimination on the basis of creed resulting from the
effect of a condition or rule rationally related to the
performance of the job and not on its face
discriminatory, a different result follows. The working
rules or condition ia not struck down, but its effect on
the complainant must be considered, and if the purpose of
the Ontario Human Rights Code is to be given effect some
accommodation must be required from the employer for the
benefit of the complainant. The Code must be construed
and flexibly applied to protect the right of the employee
who' is subject to discrimination and also to protect the
right of the employer to proceed with the lawful conduct
of his business. The Code was not intended to accord
rights to one to the exclusion of the rights of the
other ....
45. Although the Code nOw contains provisions with respect to the
protection of an employer to proceed with the lawful conduct of his
business and with respect to accommodation, the statements
contained in O'Malley are still helpful.
46. The difficulty that we are faced with arises from the fact
that the provisions of s. ll(1)(a) and 11(2) were not addressed
91
before us. In the result, if a prima facie case had been made out,
we would have had to find that the grievance succeeded and refer
the matter back to the parties to make the necessary calculations
concerning the amounts of vacation pay that would be payable to the
affected employees absent for more than one month and in receipt of
W.C.B. benefits, while retaining jurisdiction to deal with any
difficulties they might encounter in arrivigg at those amounts. We
note that in the grievance the Union claimed monetary relief ow
behalf of all employees on W.C.B. and not only those who were
absent from work for more than one month, when only the latter
employees could claim that they h~d been discriminated against
contrary to the Code.
We are being asked by the Union to find that there had been
illegal discrimination against employees in receipt of W.C.B.
benefits while absent from work for more than a month because their
absence was based on their handicap. Such a conclusion begs the
question because it assumes that the very question being argued had
already been decided in accordance with the Union's position. That
is, that unlawful discrimation because of handicap exists once the
three rules in the Keene formulation have been satsified. That
this is not the case is made clear, not only in the references
cited from O'Malle¥, but as well from'the discussion of the Court
in Brooks concerning the definition of the term discrimination. In
the latter case, after referring to a number of authorities,
92
including O'Malley!, the Court concludes, at p. D/6193, para. 44377~
(C.H.R.R.):
There ate many other statements which have aimed at a
short definition of the term discrimination. In general, they
are in accrorld with the statements referred to above. I would
say then thatldiscrimination may be described as a distiction,
whether intentional or not but based on grounds relatin~g to
the personal ~haracteristics of the individual or group, which
has the e~fect of imposing burdens, obligations or
disadvantage~ on such individual or group not imposed upon
others or which withholds or limits ~ccess to opportunities,
benefits, a~d advantages available to other members of
society. ..!
In begging the question as to what discrimination is, the
Union has ignored the requirement that to be discrimination because
of a. prohibited ground, the individual or group must establish that
he, she or they iwas/were subjected to a distinction "based on
grounds relating Ito personal characteristics ... which has the
effect of imposin~ burdens, obligations, or disadvantages on such
individual or group not imposed on others or which withholds or
limits access to ~pportunities, benefits, and advantages available
to other members ~f society." In this case, the latter group would
comprise all othe~ members of the workforce. In the case before
us, based on the.authority of O'Malley and Brooks, there is no
distinction made in art. 14.06 in applying the condition for pro-
.
ration of vacation pay between employees suffering from a handicap,
such as the employees with whom we are concerned and ail other
members of the workforce. If in practice, the rule or standard,
neutral on its fate, had not been imposed on all other members of
the workforce, th~ result might have been different. Without the
93
"distinction" referred to in the quotation from Brooks, there can
be no discrimination.
Stated somewhat differently, the restriction in the case
before us did not affect employees in receipt of W.C.B. benefits
for more than a month "differently from others to whom i't may
apply." (O'Malley at p.332 D.L.R.) That, is, the restriction in
art. 14.06 does not have a significantly different impact on tbe~
employees with whom we are concerned when that impact is compared
with that imposed on all other "members of the workforce who are
absent from work for more than one month in the contract year" for
other reasons. In Glengarry and the cases which followed it, such
a disproportionate difference in impact was found to exist, even
where the issue only involved an allegation of direct
discrimination.
47. Because of the pains taken by counsel, we will deal with the
balance of the authorities that were relied upon.
We would note that in the Canada Packers case the board did
not deal with adverse effect discrimination, and its analysis did
not consider the impact of a provision neutral on its face.
48. The Lions GAte case, similarly, did not consider the effect of
adverse effect discrimination.
94
.49. The'Canadian Airlines International case'did not analyze the
case in terms of adverse effect discrimination. Although adverse
effect discrimination and direct discrimination require proof that
the discrimination was because of a prohibited ground, each form of
discrimination is subject to a different kind of analysis.
50. In Glen Haven Manor, the board dealt with the issue as
involving a case of direct discrimination. Reference is made,
p. 68, to the crux of the case against the employer being "whether
the unintended consequences of the employer"s policy of prorating
vacation benefits - as it has been applied tl females on maternity
leave - violates [the Code]." The board did not deal, in its
analysis, with a case of adverse effect discrimination. In a case
involving direct discrimination, the board in Glen Haven, noted, at
p. 70, that there is no discrimination where all employees are
subject to the same restriction. The board, however, added: "...
to say that the practice of the Employer applies equally to all
'similarly situated' persons would dramatically narrow the purpose
of human rights legislation." Once again we note that there is,
therefore, no magic formula that will enable a board to avoid the
analysis that must be performed in each case to determine whether
the Code has been violated in an individual case.
51. The Kennedy House case, although it does not deal with an
alleged violation of the Code, does deal with the reduction in
vacation entitlement of the grievors by reason of the operation of
95
a provision in the applicable collective agreement through pro-
rating benefits when they are on leaves of absence or other unpaid
periods which exceed 30 cumulative days during the twelve months
during which the employee is qualifying for vacation. The argument
of the union was that the absence was by reason of participation in
a strike which was an absence "due to an other unpaid period"
within the meaning of the article before the board (art. 3.01).
52. At p. 16 of the Kennedy House case, the board notes that the
union argued that art. 3.01 of the collective agreement protected
employees engaged in activity that was otherwise lawful, who, it
was alleged, had been subject to both intentional discrimination
and adverse effect discrimination, and the board referred to the
O'Malle~ case. The submission of the union was that the general
language of art. 15.05 (the pro-ration article) differentially
impacts on employ~gs engaged in activity that is otherwise a lawful
activity protected under art. 3.01. The majority in the Kennedy
House case was affected by the fact that the proration article was
applied not only to employees who did not work'during the strike
but to all employees who fell under the purview of that article.
It would appear that the board found that there was no
discrimination based on the fact that certain employees were on
strike but that they had their benefits pro-rated because they were
absent from work for the period specified in art. 15.05.
96
In dealing with the claim of the union, the majority of the
board sated at p.20, that:
... however innocent the motivation of the company may ~
have been, it remains the case that this clause has an
adverse impact on those who seek to engage in the
activity that is protected by Article 3.01[.] A number
of observations may be made. First, it may be argued
that, insofar as Article 3,01 is only breached where
discrimination occurs because of union activity, it
incorporates some requirement of motive or intention.
Secondly, counsel was unable to,provide the board with
any cases in which a board of arbitration under a
collective agreement had found discrimination to exist
the basis of adverse impact alone, irrespective of the
intention of the company.
(Emphasis in original)
In referring to the O'Malley case, the board observed that the
Supreme Court of Canada noted that it was the result or the effect
of "the action that is important and not the motive behind it."
At p. 21, the majority of the board in Ken~ed~ Hous~ indicated
that the reasoning of O'Malley had to be qualified when
interpreting a collective agreement because although art. 3.01 had
as its "aim the elimination of discrimination, [it did] not exist
in isolation from other provisions. They must be construed in the
larger context of the collective agreement. They exist in
association with other provisions that serve other interests and
must be interpreted in such a fashion as to give reasonable meaning
'and application to all provisions of the agreement." The majority
of the board noted that (at p.22):
Article 3.01 requires that the action alleged to be
discriminatory be taken "because of activity..." in the
union. In this case it cannot be said that vacation
entitlement was reduced because of activity in the union.
Rather, it was reduced because the grievors were absent
from work during an "unpaid period". It is true that
the grievors were unpaid because of the strike. It is
also the case that this circumstance' triggered the
application of Article 15.05. It does not, however,
follow that they were therefore denied their vacation
entitlement because of their activity in the union.
(Emphasis in original)
53. A reading of the Kennedy House case indicates that while it
noted the O'~alley case, it did not find itself constrained by the
statements made there concerning how a board is to assess whether
there has been adverse effect discrimination. Its decision may b~
the same as the Board in this case, but it relied on certain
principles that are not applicable to this case.
54. We would also note that the decision in the Pezuk ease is not
of any assistance because in that case the Board concluded, at p.
5, that the article before it was "contrary to the prohibition
against discrimination 'because of handicap'" and that the :
· '"employer did not seriously challenge the union's contention" to
this effect.
55. We do not accept, as a bald proposition, the assertion of
counsel for the Employer that would require us to treat decisions
of the G.S.B. as having merely persuasive authority. We would
accept counsel's statement if he meant that such cases were not
binding on us if they did not follow the dictates of the Supreme
Court of Canada in the cases cited to us. We note that the first
position overlooks the effect of the Blake decision on panels of
98
the Board. In any event, the G.S.Bo decisions relied upon by the
Union are, for the reasons stated above, distinguishable.
56. After the conclusion of the hearing, the Board invited counsel
for the parties to deal with the implictions, if any, for the
matter before it of certain cases that had not been addressed, in
argument. One of these cases was O.~.A., and Etobicoke General
Hospital e] al. (1993), 14 O.R. (3d) 40 (Div. Ct.). In that case
the headnote summarizes the facts:
A clause in a collective agreement deemed all employees
absent from work for more than 24 months due to illness or
disability to be automatically terminated. The grievor was
terminated pursuant to that clause notwithstanding that her
absence was due to a compensable disability which was
therefore a handicap for the purposes of the Ontario Human
Rights Code.
The arbitrator upheld the termination holding that
because a person with a handicap was dealt with in the same
manner as any other employee both prior to and after a 24-
month absence from employment the termination from employement
was due not to the grievor's handicap but to her absence from
employment due to illness or disability for. 24 months. The
union applied for judicial review of that decision.
The Divisonal Court found the decision of the arbitrator to be
patently unreasonable.in rejecting the reasoning of the board in
Glengarry, subsequently affirmed by the Divisional Court in
Stratford. the court found the approach in Glengarry set-out at pp.
17-18 above to be correct.
The court went on to say (at p. 43) that even if it was
prepared to assume the arbitrator was correct and a prima f~cie
99
case of direct employment discrimaination had not been made out,
then it would find that a prima facie case of employment
discrimination had been made out "based on constructive
discrimination provided for in s. 1 of the Human Rights Code." We
believe that the court must have intended to refer to s. 5 of the
Code that deals with the subject of employment and not s. 1 that
deals with services. The court stated, a~ p. 43:
... In our view, even if cl. 8o03(g) [the clause ~q
question] can be properly viewed as a neutral provision there
can be no doubt that in the circumstances of this case, the
clause has adverse effects on employees because of their
handicap and is accordingly discriminatory for that reason:
see Ontario (Human Rights Commission) v. Simpson~-Sears Ltd.,
[1985] 2 S.C.R. 536 at 550, 23 D.L.R. (4th) 321 at p. 332.
The court added, at p. 44, that "[i]n the absence of a'finding
of discrimination there is no jurisdiction to conduct a s. 17
hearing."
Although counsel for the Employer invited us to reject the
reasoning of the Divisional Court in the Etobicoke case. as being
erroneous, we could not do so even if we agreed that this was the
case. The decision did not merely state that the decision of the
arbitrator was one that might reasonably have been arrived at, even
if that might not necessarily have been the decision of the court.
Rather, it indicated (at p. 43) that it regarded the decision to be
patently unreasonable and was inclined to regard the decision in
Glengarry to be correct.
100
This does not end the matter~ however, as we are still
required to decide the issues before us on the "circumstances of
this case." See Etobicoke at p. 43.
57. There is a fundamental difference between the circumstances of
this case and those relied upon by the Union. The benefits granted
to empoyees under art. 14:06 have been agreed in para. 7 of the
"Agreed Statement of Facts" (Appendix 1) to be "earned by an
employee on the basis of time worked," in the same way as are wages
provided for in art. 12 and Schedule "A" to the collective
agreement. In the face of this agreement, it is now too late to
argue that this is not the case, at least for the purposes of this
case.
58. What then is the effect of the. fact that there is agreement
for the puprposes of this case that.benefits under art. 14.06 are
earned on the basis of time worked? We refer to our analysis of
O'Malley at p. 71, above, and the statement at p. 332 of that case
that to amount to prohibited discrmination, the discriminatory
effect of the rule imposing obligations, penalties, or restrictive
conditions on some employee or employees must not have been imposed
on other members of the workforce. This was unlike the case before
the Divisional Court in ~tobicoke where the court found that the
obligations, penalties, or restrictions before it were not imposed
on all other members of the workforce.
101
59. Another case referred to counsei for comment was Re Riverd~le
Hospital (1993), 39 L.A.C. (4th) 63 (S.L. Stewart). This case deals
with a situation where an employee's seniority date was changed
because of a period of absence due to disability of 30 calendar
days or more, the collective agreement providing that seniority
would not accrue during a period of absence in excess of 30 days.
The effect of the reduction in senior%ty was to reduce the
grievor's vacation entitlement. One of the issues dealt with by th~
board was whether there had been a contravention of sec. 5 of the
Code based on handicap.
60. The board followed the decision on Re Toronto Hospital and
O.N.A. (1992), 31 L.A.C. (4th) 44 (P.C. Picher), that rejected the
reasoning in Canada Packers, and followed that in GleDgarry. The
· significant difference between the ~iverda]e case and the one
before us is the same as that between this case and Rtobicoke. In
Riverdale.there was inequality of treatment with respect to a
previously earned benefit. This was not the case in the matter
before us.
61. The Board also received submissions from counsel as to the
effect of Sears, 1129/86 (M.G. Picher). In that case, the grievor
was injured at work and was absent for over four months. The sole
issue was whether during a portion of a period of his absence the
grievor was wrongfully deprived of the accrual of vacation credits.
102
62. Reference was made, at p. 4, to the f~llowing articles of the
collective agreement:
47.2 An employee is entitled to vacation credits under section
47.1 in respect of a month or part thereof in which he is at
work or on leave with pay.
~47.3 An employee is not entitled to vacation credits under
section 47.1 in respect of a whole month in which he is absent
from duty for any reason other than vacation leave-of-absence
or leave-of-absence with pay.
63. Pursuant to art. 54.2 of the collective agreement, the grievor~
was paid his regular salary from the date of his accident on April
22, 1986 until July 24, 1986. On July 23, 1986 the grievor was
given the option by the employer to supplement his WCB award from
earned vacation credits or to revert to the use of his Short Term
Sick Plan. He could have chosen to use either of those alternatives
to supplement his WCB Award, but chose to sign the following "WCB
Option Authorization" form presented by the Employer on July 23,
1986:
I do not wish to supplement my Award or revert to my
Short-term sick Plan. I therefore elect to receive my Award
directly from the Workmen's Compensation Board, effective (90%
of net pay).
64. The position of the employer was that by making the election,
the grievor had chosen to take a leave of absence without pay,
thereby disentitling himself to the benefits under art. 47.1 to the
extent provided in art. 47.3 - being for the period July 24, 1986
to the date of his return to work on September 3, 1986.
103
65. The position of the union, set-out at pp. 4-5, was that the
grievor was not not on a leave of absence without pay and that his
status:
... for all practical purposes, was no different between the
date of his injury and July 23rd, during which time he was
paid directly by the Employer at the rate of his full salary,
with vacation credits continuing to accrue to his benefit,
than it was during the period from July 24 until his return to
work, when he received 90% of his net salary in the form of a
cheque from the Workers' Compensatio~ Board. That amount was
paid dollar for dollar from the funds of the Employer, as
Schedule 2 reimbursements. Counsel notes that in fact for the.
entire period of his absence, both before and after July 23rd,
the grievor was in receipt of Workers' Compensation benefits
in some form. He argues that it is inconsistent with the
purpose of the Workers' compensation scheme or the intention
of the collective agreement for the Employer to have the
option of forclosing the grievor's rights to accrued vacation
benefits by opting, as it can, to have .his Workers'
Compensation Benefits paid to him in the form of a cheque from
the Board, rather than as a cheque in the same amount directly
from the Employer. Counsel for the Union submits that the form
of payment cannot determine whether the grievor was on a paid
or unpaid leave of absence. He argues that the true substance
of the transaction is that, firstly [the grievor] was not
granted a leave, since the Employer had no discretion to
exercise in that regard, and, secondly, that during his
absence he was at all times paid from funds traceable entirely
to the Employer. in Counsel's submission, the fact that for
the first three months the grievor's compensation was in the
form of a continued salary cheque while thereafter it was in
the form of a cheque for the Workers' Compensation Board,
fully subsidized by the employer, can make no difference with
respect to his rights under the collective agreement.
66. After surveying the provisions of the collective agreement
with respect to the terms "leave with pay" and "leave-of-absence
with pay" and the alleged practice of the employer with respect to
the application of those words, the Board concluded that no such
parctice existed and that the grievor's case did not fall within
104
any of the collective agreement provisions dealing with leave. The
Board referred to art. 52.1:
An employee who is unable to attend to his duties
due to sickness or injury is entitled to leave-of-absence
with pay as follows:
(i) with regular salary for the first six (6) working days of
absence,
(ii) with seventy-five percent (75%) of regular salary for an"
additional one hundred and twenty-four (124) working days
of absence,
in each calendar year,
and concluded:
The foregoing provision suggests that in the
contemplation of the collective agreement, there is nothing
inimicable (sic) in an employee being absent as a result of a
non-work related injury and that same employee continuing to
accrue vacation benefits for at least a period of 130 days.
67. The case before us is different from that before the Board in
Sears in a number of ways. Here, art. 14.06 clearly prov%~es for
the result objected to by the Union. It is a specific provision
dealing with a specific set of circumstances and is not in conflict
with any other provision of the collective agreement. The only
issued argued at the'hearing was whether article 14.06 amounts to
a violation of the provisions of the Code above referred, and we
have in our reasons explained why it does not.
68. In the case of ~ Joseph Brant (1973), 5 L.A.C. (2d) 15
(Brown) followed by the Board in Sears, there was no clause in the
collective agreement that would achieve the purpose argued for by
105
the employer in that case, and it can, therefore, be distinguished.
To the same effect is Re Cranbrooke (1979), 24 L.A.C. (2d) 274
(Thompson), also approved of by the Board in Sears.
69. The Board in Sears concluded, at p. 13, that: "Such a policy
would be inconsistent with the fundamental spirit of the Workers'
Compensation scheme, and the general intention of the collective
agreement ... Absent clear and apecific language, we cannot
conclude that the parties intended to disentitle an employee from
the accrual of vacation credits in that circumstance." In the case
before us, we are not dealing with the validity of an alleged
policy and, furthermore, there is "clear and specific language"
dealing with the subject matter of the dispute.
70. Counsel also responded to the Board's request for comments on
Bowen, 3676/92 (Barrett), dated September 2, 1994. In that case the
grievor was injured in the course of his employemt on February 14,
1991, and was thereafter in continuous receipt of W.C.B. benefits.
It was not anticipated that he would return to his duties with the
employer in the near~ future or that he would ever return to his
duties, the matter being the subject of uncertainty. The Employer
became aware of the long-term nature of the grievor's disability in
December of 1991. By letter dated July 28, 1992, the grievor
requested payment of his vaction credits earned prior to February
1991. The grievor received payment in full in accordance with his
request for the entire vacation year 1990-91 (that is, through
March 31, 1991).
After his receipt of the above noted payments, the grievor
requested additional vacation payment beyond the date of his
accident (February 14, 1991). In his letter of request, dated
November 30, 1992, he stated:
... It has been pointed out to me that according to our
contract, vacation time is considered a benefit that is accumulated
while employed in your service. If this is so I trust that you
will recalculate the outstanding vaction pay, and send me a cheque
to cover the balance.
The employer denied the request in a letter dated January 7,
1993, and stated that: Circumstances would be different had you
returned to work for this firm during the past 23 months, but you
have not.
The grievor filed a grievance on January 14, claiming vacation
pay from February 14, 1991 to the date of the hearing on December
7, 1993. At issue in the arbitration was the interpretation of
Article 13.01 of the.collective agreement, the relevant portion
being:
Vacations with pay will be granted annually as follows fro
full-time employees;
One hundred and twenty (120) hours after (1) year of
continuous service.
The employer submitted (at p. 5) that:
107
.0. vacations with pay are a benefit earned by service and
that the parties, when formulating their vacation clause,
could not have intended to provide for vacation with pay in
any given year where there was absolutely no service performed
whatsoever. Counsel argues that such an interpretation would
lead to the absurd result of an employee off work earning more
than an employee working full time, in that the vacation pay
would be in addition to the 90% of net pay provided by the
Workers' Compensation Board for 52 weeks a year.
The case fell to be decided (at p. 1%) on the basis that:
... The grievor is still a full-time employee and therefore in
"continuous service". There is nothing in this collective
agreement which expressly or impliedly limits the accumulation
for vacation credits during a WCB absence from work.
71. Unlike the case in Bogen, not only is there an express
provision that limits the.accumulation of vacation pay for the year
on a pro-rata basis (art. 14.06), in the case before us, the
parties have specifically agreed that that article treated
"vacation pay as a benefit which is earned by an employee on the
basis of time worked."
72. In summary: (a) We conclude that the principle distinguishing
feature of the case before us and such cases as Glengarry and
Etobicoke is that fact that the benefit provided for in the
collective agreement denied the Grievors by art. 14.06 was - as
agreed to by the parties - like wages earned "on the basis of time
worked." The handicap sufferred by the Grievors was, accordingly,
not the proximate reason for their being denied the vacation pay
benefit sought by them, and the provisions of art. 14.06 do not
/
108
amount to a violation of their rights as handicapped persons under
the Code.
(b) The issue addressed to us in argument was limited to whether
the Grievors' rights as handicapped persons had been violated under
the Code. Even if the issue had been broader, on the facts before
us, we cannot find that the exclusion of ~he Grievor's is unclear
or in conflict with another provision of the agreement. It is j~
specific provision, intended by the parties to deal with the
specific situation described in art. 14.06. As such it is not in
conflict with the right that would otherwise generally accrue to
the Grievor's under art. 14.01 or any other general provision.
Article 14.06 was intended to create exceptions to the receipt of
vacation pay. There being no suggestion that article 14.06 was not
agreed to in good faith for legitimate .business reasons, it will
stand unless it violates the provisions of the Code or some other
statute of general application - which we have found it does not,
on the facts before us.
DECISION
For all of the above reasons, the grievance is denied.
We wish to thank counsel for their full and helpful
submissions. It is evident that the issue is of great importance
to the parties, and it is in response to this fact and to the well
109
presented arguments that we have rendered our decision at greater
length than would usually be the case.
Dated at Toronto this ITth day of February, 1995.
M, Gorsky - Vice Chairperson
'I Dissent' Dissent to follow
M. Lyons - Member
F. Collict - Member
APPENDIX ' 1 '
Agreed Statement of Facts
Between
District of Halton and Mississauga Ambulance Service (Employer)
and
Ontario Public Service Employees Union (Union}
On behalf of Local 207
In the matter of: Union Grievance dated August 14, 1991
GSB File No. 1389/91
OPSEU File No. 91D768
Re: Denial of Vacation Accrual
With respect to the above-noted grievance, the parties have agreed to the fotlowing
statements of fact:
1. The parties agree that the Board of Arbitration in this matter is Properly
constituted with full authority to hear and resolve the above-noted grievance in
accordance with the Crown-Employees Co~ective Bar§aining Act (CECI~A) as
modified by Bill 117.
2. The parties agree that the fundamental issue in dispute is whether or not Article
14.06 of the collective agreement as interpreted and applied by the employer
is discrimination in contravention of the Ontario Human .Rights Code,
3. Article 14.06 of the collective agreement reads:
"An employee who is absent from work for more than one month in the contract
year, excluding normal periods of maternity, will receive vacation pay for that
year on a pro-rata basis. For example, an employee who has been absent for one
month will lose 1/12 of his vacation entitlement; an employee who has been
absent for four (4) months will lose 4/12 of his vacation entitlement."
4. The parties agree that the language of 14.06, as noted in paragraph 3, has
remained unchanged in their four collective agreements since April 1, 1986 when
it was first negotiated.
5. The parties agree that the employer has consistently apptied Article 14.06 in pro-
rating the accrual of vacation credits for employees absent from work for more
than one month. This practice has been in place from April 1, 1986 onwards and
is a practice of which the Union has been fully aware. The practice includes but
is not limited to employees who have been absent from work for more than.one
month and who are in receipt of Workers' Compensation benefits.
6. The parties agree that the Union has previously challenged the application of
Article 14.06 to those employees absent from work for more than one month and
who are in receipt of Workers' Compensation benefits as discrimination under the
Human Rights Code. This challenge was by a number of grievances with various
dated which were referred to arbitration but withdrawn by the Union prior to the
commencement of the arbitration hearing.
7. The parties agree that the language of Article 1~.06 was entered into freely by
the parties. The purpose of this language was to treat vacation pay as a benefit
which is earned by an employee on the basis of time worked. .,
8. The parties acknowledge that they are governed by tl~e terms and conditions of
the Ontario Human Rights Code, RSO 1990.
9. The parties agree ,that this grievance was initiallY scheduled for hearing on
September 10, 1992 before the Grievance Settlement Board and was adjourned
sine die at the request of the Union on the condition that there be no employee'~
liability during the period of adjournment.
10. The parties ask the Board of Arbitration to make a determination and.declaration
as to whether Article 14,06 and the employer's interpretation of this article is
discriminatory pursuant to the Code. Should the Board find that the language and
or the practice discriminatory, then the parties ask that the matter b~remitted to
the parties for resolution. The Board of Arbitration should remain seized of the
matter if required,
Union "Date
Employer Date