HomeMy WebLinkAbout1978-0137.Tracey.81-02-09Between: Mrs. C. S. Tracey "
Before:
137/78
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
-.And -
The Crown in Right of Ontario
Ministry of Correctional Services
Prof..K. P. Swan Vice Chairman
Mr. F: T. Collict Member
Mr. B.. Switzman Member
For the Grievor: Mrs. M. Mercer De-Santis, Grievance Officer
Ontario Public Se,rvice Employees Union
:For the Employer: Mr. P. Moran
Hicks, Morley, Hamilton
Hearinq:~ August,l5, 1980
Suite 2100
180 Dundas Street West
Toronto M5G 128
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This grievance arises out of the pregnancy of the grievor,
Mrs. Cindy Tracey, and the birth of her daughter by caesarean .'
section on September 6, 1978. In essence, the dispute now before
us is whether the grievor's absence from work during the period
related to this operation and her recovery therefrom should be
characterized as an absence "due to sickness or injury", and
therefore giving rise to an entitlement to leave-of-absence with
pay under the Short-Term Sickness Plan of the applicable Employee
Benefits Collective Agreement (Oct. 1, 1977 - Sept..30, 1978); or
as absence "for &purpose of childbirth", thus entitling the
grievor only to leave of absence without pay and without accumula-
tion of credits. The,relevant provisions of the agreement are:
ARTICLE 11 - MATERNITY LEAVE
11.1 A deputy minister shall grant leave-of-
absence without pay and without accumula-
tion of credits for the purpose of child-
birth to a fen&e employee who has served
more than one year including service as a
Crown employee inmediately prior to her
appointment to the civil service..
11.2 The leave-of-absence shall be in accordance
with the provisions of the Employment
Standards Act.
11.3 A female employee returning from a leave-of-'
absence under Article 11.1 to the Ministry
in which she was employed inmediately prior
to such leave shall be assigned to her former
classification and be paid at the step in
the salary range that she had attained when
the leave-of-absence was granted.
ARTICLE 13 - SHORT TERM SICKNESS PLAN .~~. _,.~.~~.~~. .~. ~-~. -..~ ~.. -
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13.2 An employee is not entitled to leave-of-
absence with pay under 13.1 of the drticle
until he has completed 20. consecutive days
of employment.
13.3 Where an employee iSon a sick leave-of-
absence which co~rmences in one calendar
year and continues into the following
calendar year he' is not entitled to leave-of-absence
with pay under 13.1 of this Article for mxe than 130
working days in the 2 years until he has returned to
work for 20 consecutive working days. I y$ ".! ,,,
13.4 An employee who has used leave-of-absence
with pay for 130 working days in a calendar
year under 13.1 of this Article must complete
20 consecutive working days before he is entitled to further
leave under 13.1 in &he next calendar year.
13.5 The pay of an employee under this Article is
subject to deductions for insurance coverage
end pension contributions that would be made from regular
P=Y. The employer paid portion of~all payments and subsidies
will continue to be made.
Article 11, it will be,noted, incorporates by reference the
applicable "provisions of the Employment standards Act". Those pro-
visions are found in s-0. 1974, as amended, sections 35 to 38, which
are:
Sec. 35. No employer shall terminate the employment of or
lay off an employee who is entitled.to a leave of absence under
section 36, but the employer may require the employee to commence
a leave of absence pursuant to section 36 at such time as the
duties of her position cannot reasonably be performed by a
pregnant woman or the performance of her work is materially
affect&by the pregnancy.
sec. 36. (1) An employee who is pregnant end who has been
employed by her employer for a period of at least twelve rront$s
and eleven weeks immediately preceding the estimated day of her
delivery, whether such employment commenced before or after the
coming into force of this Act, shall be entitled upon her
application therefor to a leave of absence of at least seventeen
weeks from her employment or such shorter leave of absence as
the employee may request commencing during the period of eleven
weeks immediately preceding the estimated day of her delivery..
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(2) Notwithstanding s§ion 1 and subject to sub-
section 5, where the actual date of her delivery
is later then the estimated day of her delivery,
the leave of.&sence shall not end before the
expiration of six weeks following the actual date
of her delivery.
(3) The employee shall give her employer two weeks' notice
in writing of the day upon which she intends to commence
her leave of absence and furnish her employer with
the certificate of a legally qualified medical practi-
tioner stating that she is pregnant and giving the
estimated day upon which delivery will occur in his
opinion.
(4) Subject to subsection 5, an employee may, with the
consent of her employer, shorten the duration of the
leave of absence requested under subsection 1.
(5) An employee may shorten the duration of the six week
period mentioned in subsection 2 upon giving her
employer one week's notice of her intention so to do
and furnishing her employer with the certificate of
a legally qualified medical practitioner stating that
she is able to resume her work.
Sec.' 37. An employee who does not apply for leave of absence
under section 36, end who is otherwise entitled to pregnancy
leave thereunder, shall be entitled to and shall be granted
leave of absence in a&ordance with section 36 upon providing
her employer before the expiry of two weeks after she ceased
to work with a certificate of a legally qualified medical
practioner stating that she was not able to perform the duties *
of her employment because of a medical condition arising~ from
her pregnancy, and giving the estimted da$ upon which, in
his opinion, delivery will occui or the actual date of her'
delivery.
Sec. 38. (1) An employee who intends to resume her employ-
ment on the expiration of a leave of absence granted to her
under this Part shall so advise her employer end on her return
to work her employer shall reinstate the employee to her
position or provide her with alternative work of a comparable
nature at not less then her wages at the time her leave of
absence began end without loss of seniority or benefits accrued
to the commencement of her leave of absence.
(2) Where the-employer has.,suspended or discontinued opera-
tions during the leave of absence and has not resumed operations
upon the expiry thereof, the employer shall, upon resumption of
operations;reinstate the &ployee to her employment or to
alternate work in accordance with an established seniority
system or practice of.the einployer in existence at the time
her leave of absence began with no loss of seniority or be?=-
fits accrued to the commencement of her leave of absence, end
.in the absence of suc& d system or practice shall reinstate
the employee in accordance with subsection 1.
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There is no real dispute as to the evidence in this matter.
Mrs. Tracey is a Probation and Parole Officer 2, and has been so
employed since 1973. Because of compl.ications which had arisen in
her first pregnancy, she was informed early in her second pregnancy
that the appropriate delivery method would be a caesarean section
which, as is probably nearly universally known but about which we also
received medical evidence, is a surgical procedure to deliver the
child throughan incision made in the abdomen. This operation differs
from a normal delivery through the vaginal canal (we were told by Dr.
P. J. Hirsch,the grievor's gynecologist) ,i,n that it constitutes majot-
abdominal surgery under a general anaesthetic rather than a basically
natural process, and thus involves considerably more injury to the
body and a consequently protracted recovery. Perhaps the best way
to encapsulate the evidence is to use an example advanced by the
grievor and confirmed as to technical accuracy by Dr. Hirsch: the
trauma inflicted on a woman~ by a caesarean section is roughly the
same as that inflicted on a man - or presumably another woman ~- by
a gall bladder operation.
The grievor's submission, reduced to its simplest terms, is
that she suffered a "sickness or injury" as'that expression is used
in Article i3.1, and is thus entitled to be paid under the Short Term
Sickness Plan just as much as would be a male colleague - or presumably
another female colleague - who underwent gall bladder surgery on the
same day. We, have used this example to describe the issue between
the parties because the issue of equity appears to underlie the grievor's
case and therefore ought, we think, to be squarely addressed. The Union's
argument was based primarily, however, on the construction of the words
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of the collective agreement.
The submissions of the parties reveal that the grievor had
advanced a claim to be granted sick leave soon after learning~that
she would need a caesarean section, and that'her request had been
as promptly denied by the employer. Both parties held tenaciously
to those positions up to and during the hearing, and in the event
Mrs. Tracey took leave for her delivery and recovery on the basis
of unpaid pregnancy leave supplemented by paid days off in lieu of
overtime and vacation, always preserving her position in respect
of her grievance. .'
There is no need to rehearse the evidence,further, since the
issue.before us is crystal. clear: under this collective agreement,
is time off from work for delivery of a child by caesarean section
compsensible as sick leave or is it properly characterized as preg-
nancy leave? This matter has never arisen before under this agreement,
nor in,.any other reported Canadian case. It is therefore a matter
of first impression, but it also falls to be decided in the general
context of cases on the relationship between sick leave and pregnancy
leave. We thus begin with a review of that jurisprudence.
In the last decade a number of cases have dealt with the right
of a pregnant employee to claim under a sick leave plan. A claim
that pregnancy per se constitutes a disability, or a sickness, or
an illness.,'depending upon the wording of the applicable.collective
agreement, is rare, but has been advanced in at least two of the cases.
In Re Canadian Union of Public Employees. Local 840 and Corporation
the mr0ugh of r0rk (1971), 22 L.d.c. 389 (.srown) the interaction of
a collective agreement sick leave plan and the remen's equal Employment
Opportunity Act, RS.0. 1970, c.501 (now replaced by the hnployment
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require payment of sick leave benefits to an employee for the period
during which she was unable to work during pregnancy. This case
is clearly the high-water mark, and is extensively criticized in the
other award, Re Windsor raceway Holdinqk Ltd. and Hotel and~Restaurant
Employees' Union, Local 743 (1976), 13 L.A.C. (Zd) 345 (Stewart),
where a majority of the Board held that,pregnancy and the normal
delivery process do not of themselves constitute a sickness or illness;
The criticism is excessive and unpersuasive; it is based on the
reductio ad absurdurn that if pregnancy is once classified as an ill-
ness, an employee could, inunediately upon conception;insist on sick
leave benefits until she‘wasprepared to return to work. With respect,
that criticism is not responsive to the decision in the aorouqh of
rork case, which is to the.effect that, for whatever period an employee
is dlsdbled~from work due to pregnancy, the absence may reasonably
be categorized as due to 'illness". Not pregnancy per se, therefore, --
but disability due to pregnancy, is held eligible for compensation.
This case is, aswe have observed, the high water marks, and is
perhaps best understood by observing that the collective agreement
there made no provision for pregnancy leave, which was available only
under the statute. The agreement provided no limitation by inference
on the meaning of the word "illness", which was thus arguably open to
the "broad interpretation" which the award asserts ought to be given
to that word. We note in passing (the Union has not advanced such an
assertion) that such a finding is not possible under the agreement
before us, which provides for separate schemes "for the purpose of
childbirth" and for inability to work "due to sickness 01 injury",
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with leave without pay for the first and leave with pay for the
second. The inference is inescapable that childbirth and its
.normal. attendant disability is not included in the expression
"sickness,or injury" as it is used in this collective agreement.
A second line of cases onpregnancy and sick leave deal
with the proper characterization of abnormal pregnancy related
occurrences. These cases appear at least to say that where dis-
ability is due to a pre-existing abnormality or condition which
is aggravated or even triggered by pregnancy, such a disability
may properly be treated as due to illness or sickness, depending
on the wording of the agreement. The cases advancing this proposi-
tion include Re'Thompson Products'Bmployees dss'n and Thompson
Products (1970) 21 L.A.C. 125 (W&la); Re United Automobile
Workers, Local 195,'and'Bendix'- Eclipse af Canada Ltd. (1971),
22 L.A.C. 387 (Weatherill); Rep Clarke Institute'of Psychiatry and
Ontario Nurses dssociation (1979). 21 L.A.C. (2d) 73 (O'Shea}.
There dare also cases which go farther, and suggest that abnormal
pregnancy, even in the absence of some pre-disposing condition or
pathology, his capable of being classified, under some collective
agreements, as an illness: Re Central Newfoundland Hospital Corp-
oration and Canadian Union of Pub& Employ&, Local 990 (1975).
9 L.A.C. (2dl 264 (Wallridge); Re Hotel Dieu of St. Joseph Hospital
and Ontario Nurses dssociation (1976}, 13 L.A.C. (2d] 177 (O'Shea);
Re Hdtel Dieu Hospital Kingston and Ontario.Public Service Employees
Union (1978), 13. L.A.C. (2d) 358 (McLaren). Most of these cases
deal with collective agreements which, like the one before us, provide
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separate schemes for pregnancy and illness, and the cases simply
delineate the applicability of these schemes to specific fact
situations. Without coaunenting.on how, if at all, such cases would "
apply to the present agreement, we observe that even where pregnancy-,
related conditions have qualified for sickness benefits,,arbitrators
have carefully separated the period of time away from work into a
component related to the time ordinarily lost due to pregnancy (and
thus dealt with under the statute or under a pregnancy leave provision)
and a component relating to the pathological condition which qualifies
for sickness benefits under the particular agreement: see, e.g., the
me Clarke Institute award, ~supra, atpp. 79-80.. Thus the general
structure of the collective agreement has not been altered by these
awards, which are properly understood, in our view, as being involved
with distributing time lost from work between the two schemes provided
by the agreement.
How such absences are to be dealt with is entirely for the parties,
in negotiations, to'determine, subject to the minimum requirements of
Of the Employment Standards 'Act. Here the parties have elected to adopt
the statutory scheme subject only to some elaboration in respect of
employment on return to work. That is the standard approach in collec-
tive agreements in Canada at the present time, and paid or partially
paid pregnancy leave, while not unknown, is rare. Without enquiring into
the motives of the'parties, it is clear that they have provided that
absence due to childbirth produces a loss fin income which ought to be-
borne by the employee from her own resources and those of her family,
while losses in income during absence due to sickness or injury (which
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must be understood not to include absence due to childbirth) are to
be dealt with by a scheme~of leave with pay. The equities that
arise from such a distributive decision are not a matter for our
approval or disapproval; it suffices to say that such an'allocation
of loss is the rule, rather than the exception, in collective
bargaining in Canada at the present time.
We turn, after this (perhaps unnecessary) excursion into the
jurisprudence and the social context of the present case, to the
simple question which we must resolve: does the fact that the ,grievor's
child was delivered by a direct surgical intervention put her claim
to "sickness or injury" benefits into a different class from the
rights of her colleagues whose children are delivered without such
extraordinary means?
We begin with the proposition that Article 11 clearly provides
that leave "for the purpose of childbirthw is to be without pay.
There is no doubt, on the evidence before us, that the leave which is
the subject of this arbitration was "for the p~rpse of childbirth",
since the grievor left work just before the expected (indeed scheduled)
delivery of her child by caesarean section, and the leave otherwise
complied with the Employment'standards dct; and therefore with Article
11.2. The basjs of the grievor's claim is that she suffered trauma -
"injury" - of a different kind than that suffered by employees who
deliver their children in the usual way. The evidence of the grievor's
own gynecologist is that some trauma and even some surgical inter-
vention ona minor scale, as well as some consid~erable disability, can
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be expected even from normal childbirth. Although we have supporting
medical evidence, we think we could fairly take judicial (or quasi-
judicial) notice that childbirth may be attended by physical
disability ranging from mere temporary discomfort, in a happy major-
ity of cases, to the death of the mother, in a tragic but diminishing
minority of cases. The grievor's delivery of her child was of a
form which, her gynecologist testified, is now used in about 20%
of all childbirth cases, a percentage which has rapidly increased
in recent years.~ He estimated hospital recovery from a caesarean
section as about 7 days, while recovery from normal childbirth is
about 5 days. Although the medical evidence was not explicit, we
accept that recovery after the term of hospitalization from such an
operation would also be extended beyond that for normal childbirth.
We note, however, that .5.36(z) of the'zmplcymenr standards Act
provides for a leave of up to 6 weeks after delivery of the child,
a period which, on the surface at least, appears to submerge any
difference in the hospital and post-hospitalization recovery periods
for caesarean and normal deliveries.
But the real resolution of this case lies elsewhere. The
parties have provided for differential treatment of "childbirth" on
the one hand, and "sickness or injury" on the other. As we have
already determined, the two expressions are mutually exclusive, :
although characterizationof a particular case as one or the other
cannot depend merely upon the fact of pregnancy of the employee
involved. Nevertheless, the "sickness or injury" provision is not
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designed as a reward or recompense for pain, suffering or trauma; it
is only a provision calculated to provide for lost earnings in specific
circumstances, circumstances which must, in the purposive analysis we
have undertaken, exclude earnings lost “for the purpose of childbirth”.
Thus no comparison of the procedures involved, the trauma suf-
fered or.the period required.for rehabilitation is relevant to the
considerations upon which we must decide. No one would seriously
compare the agonies of a protracted period of hard labour and the
attendant difficulties of recovery, even after a consequent'!normal"
delivery, with such trivial complaints as, for example, a two-day
bout of influenza, a sprained ankle or an acute stomach upset, yet
the Union's position (and~all of the jurisprudence reviewed above)
would allow the latter to be compensated by leave with pay, but not
the former. It is just as reasonable under the present collective
agreement (however the respective participants may feel about it)
to compare a caesarean section and a gall bladder operation. The
pain, inconvenience, trauma or even danger involved are irrelevant
to.a contractual system of compensation which separates childbirth
from other disabling occurrences by declaring that the fotmer'is the
financial responsibility of the employee and her family, while the
latter are to be subject to an income support mechanism.
While we have spent some time in discussing this matter from
the point of'view of the equities raised by the grievor in her testi-
mony, the essence of our decision is based on contractual~ interpretation.
In pur View, the expression #‘for the purpose of childbirth"~in Article
11.1 is sufficient to cover cases'of delivery by caesarean section, and
this finding, given the provision of leave without pay, takes such cases
.
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out of the ambit of Article 13.
In the result, the grievance is dismissed.
DATED AT Toronto this 9th day of February 198T.
Professor K. P. Swan Vice-Chairman
~" I concur" - F. T. Collict
Mr. F. T. Collict Member
IT