The collective agreement established an upper limit of five years per child on unpaid leave for teachers with young children. Because the limit was inconsistent as described in the contract, and was more strict than the Employment Standards Act, the arbitrator overruled it.
Four teachers applying for Leave Without Pay (LWOP) were refused leave. The employer said the leaves were not granted because the teachers had exceeded the five-year limit on leaves specified in the collective agreement.
In calculating the leaves taken by the teachers, the employer included the pregnancy/parental/adoption leaves (PPAL) taken by the teachers.
The union grieved.
The bargaining history and past practice of the parties in interpreting the contract language on the provisions respecting LWOP was not consistent.
Documentation indicated that there had been some discussions about tinkering with the language in Article 23.04 to change “may” to “shall.”
There were also informal exchanges seeking guidance on how the employer would interpret the collective agreement in light of certain hypothetical fact situations that pushed the envelope of the nominal five-year time limit.
There were inconsistencies in the leaves that were granted. The union tested the employer’s application of the five-year limit by showing numerous examples where teachers had been authorized for leaves that exceeded five years.
The language of the agreement was ambiguous and contradictory. To count both the LWOP and PPAL simultaneously to reach a five-year maximum in the manner proposed by the employer discriminated against teachers with children, the union said.
The employer said that the language of the agreement was clear and coherent. The five-year limit included one year of PPAL. The language was not discriminatory on its face — it conferred a benefit to teachers who had children, the employer said.
The five-year limit on leaves was reasonable in view of the employer’s interest in having teachers maintain their connection to the profession and the requirements of the job, the employer said. As well, the employer was entitled to exercise discretion and consider staffing needs in the granting of leaves.
Policy aim is clear
The foundation for the language in the collective agreement is in the Employment Standards Act, which sets out a statutory minimum for PPAL, the Arbitrator said. The policy aim of both the statute and the collective agreement is clear, the Arbitrator said: Parents should not have to bear the full weight of the responsibility of child rearing such that they are compelled to choose between either their careers or caring for their children.
However, the language of the agreement was ambiguous and contradictory, the Arbitrator said.
Article 23.04 states: “A leave of absence without pay beyond the pregnancy, parental/adoption leaves may be granted by the Board for up to five years. The total period of leave for Pregnancy, Parental/Adoption and/or leave without pay shall not exceed sixty (60) months for the birth or adoption of each child.”
By itself, the first sentence was clear and unambiguous and suggested the potential for a LWOP beyond the PPAL, the Arbitrator said. However, the second sentence provided a contradiction with the inclusion of “and/or.”
“The second sentence … is … ambiguous because the expression ‘and/or’ means that, from a grammatical point of view, it includes both the first and second variations on meaning which makes it internally contradictory in addition to contradicting the first sentence. It also includes a third variation that violates the relevant legislation.”
The Arbitrator rejected the employer’s argument that the union had acquiesced in the face of the employer’s interpretation of the collective agreement. For that to be true, the employer would have had to demonstrate that it had adopted a consistent practice with respect to its interpretation of the collective agreement and that the union was aware of it during negotiations. That was not the case.
No consistent practice
“The evidence relating to the employer’s decisions regarding LWOP following PPAL shows that the employer did not have a consistent practice in that, for some teachers, the employer granted five years or more LWOP in addition to the PPAL for some teachers while refusing it for others.”
The employer’s explanation that staffing considerations informed its decisions did not change the fact that the employer’s past practice was inconsistent. Moreover, there was no evidence to show that the union had a clear understanding of the employer’s practice during bargaining.
The Arbitrator endorsed the meaning as expressed in the first sentence of the provision. “Given a choice between two meanings, one of which is consistent with human rights principles and public policy, it is appropriate to choose that meaning.”
A teacher who is on LWOP has a right to PPAL if she becomes pregnant or adopts while on LWOP, the Arbitrator said. “Article 23.04 states that a teacher cannot ask for up to five years of leave per child. The interpretation of this sentence which is consistent with the rest of Article 23.04 and the Employment Standards Act, 2000 is that she has a right to a maximum of five years total LWOP excluding the PPAL taken for each child.” Changing between leaves in this manner allows for the possibility that a teacher could be granted a total of seven years of leave, the Arbitrator said.
The collective agreement did not create a right to LWOP. The employer retained discretion in the granting of leaves. However, the Arbitrator said, that discretion was not unlimited. The employer could only refuse a LWOP request on reasonable grounds.
The grievances were allowed.
The employer was ordered to reconsider the decisions it had made with respect to leave applications in light of the relevant considerations.
