Policy applied to all absences lasting longer than 30 days
An Ontario employer’s policy that adjusts vacation entitlement and service accrual for employees away from work for more than 30 days doesn’t discriminate against workers with disabilities, an arbitrator has ruled.
The William Osler Health System operates three health-care facilities near Toronto. Its collective agreement had a provision entitled “Effect of Absence” that stipulated service credit for the purposes of “salary increment, vacation, sick leave, or any other benefits under any provisions of the collective agreement or elsewhere, shall be suspended for the period of absences in excess of 30 continuous calendar days, the benefits concerned appropriately reduced on a pro rata basis and the employee’s anniversary date adjusted accordingly.”
Seniority accrual would also be paused for the absence, except if the absence “is due to a disability resulting in [workers’ compensation] benefits or [long-term disability] (LTD) benefits or while an employee is on sick leave.”
Tracy Hickman was a clerical associate at the Etobicoke General Hospital, one of the William Osler facilities. She went off work for medical reasons on Aug. 14, 2017.
Hickman received short-term disability (STD) benefits followed by employment insurance benefits. When these lapsed on March 12, 2018, she went on LTD paid for by a third-party insurer, receiving no pay from the health service until she returned to work on Nov. 5.
Hickman’s total absence was 341 days, so she didn’t accrue credit for service for the 312 days that were beyond the 30-day absence limit. The hospital prorated her vacation entitlement and adjusted her service anniversary date, though her seniority date remained in March 2000.
The union grieved the adjustment of Hickman’s vacation entitlement and service date, arguing this practice created a disadvantage for workers who were off work due to illness and therefore discriminated on the basis of disability — contrary to the collective agreement and the Ontario Human Rights Code. It pointed out that the Effect of Absence clause didn’t pause seniority accrual for workers on sick leave and vacation entitlements weren’t prorated for workers on compassionate leave, STD, pregnancy/parental leave, jury duty or bereavement leave. These distinctions were “arbitrary as they differentiate individuals on extended disability leaves from individuals on other leaves for no apparent reason,” said the union.
The union also said that the collective agreement’s vacation clause tied entitlement to “continuous service” and not performance of work or active service.
The arbitrator noted that benefits tied to seniority and service accrual served different purposes — the former were related to layoffs and promotions and “not necessarily compensatory in nature,” while the latter was tied to monetary benefits.
The arbitrator found that the Effect of Absence provision didn’t “specifically target employees off work due to disability but is of a general application to any unpaid leave that exceeds 30 days” and the prorating of benefits and service accrual pause only began after 30 days — the same applied to employees on other paid leaves.
In addition, it was apparent that both parties intended to treat seniority rights differently from service accrual, said the arbitrator.
The arbitrator pointed out that the collective agreement allowed employees off work due to illness to accrue vacation during the 15 weeks of STD plus another 30 days after they lapsed. This was “much longer” than other paid leaves in the collective agreement.
The arbitrator also found that the difference in how employees on pregnancy and parental leave were treated was due to employment standards legislation, which require employers to continue both seniority and service accrual for a specific time.
“It is difficult to conclude that a provision which is designed to meet a statutory minimum requirement is arbitrary in nature,” said the arbitrator.
The arbitrator determined that the practice on extended leaves was not discriminatory against employees with disabilities. The grievance was dismissed.
Reference: William Osler Health System and TC, Local 419. Colin Johnston — arbitrator. Thomas Agnew for employer. Kamal Bakhazi for employee. April 8, 2020. 2020 CarswellOnt 6568
