Ontario teacher alleges prejudice due to pregnancy leave

Sick-days credit only given after working complete year

After she returned from 52 weeks of pregnancy and parental leave, a teacher was surprised to learn that she wouldn’t receive sick-leave credits for the year off.
Lisa Mahon was a full-time teacher at the Golden Avenue Public School in South Porcupine, Ont., who went on leave from Aug. 17, 2015, to Aug. 17, 2016. When she returned to work in September 2016, Mahon was given 11 sick days for the 2016, 2017 academic year.
By March 1, 2017, Mahan had used up all her sick days and she wrote a letter to the school board that said she would be accessing short-term leave and disability plan (STLDP) leave. 
As the STLDP only paid 90 per cent for its duration, Mahon advised the District School Board Ontario North East that she wanted to use sick-leave credits from the 2015, 2016 academic year when she was off. 
However, payroll clerk Kelly Jacques sent an email to Mahon that explained that because Mahon didn’t work at all during the 2015, 2016 academic year, she was not eligible to receive a sick-leave bank of 11 days.
(Unused sick days were banked by union members but the only reason they could be accessed was to top up the STLDP leave pay of 90 per cent.) 
Mahon and the union, the Elementary Teachers’ Federation of Ontario (ETFO), grieved the board’s denial and asked to be compensated $135.63. 
Enrica McGillis, manager of payroll and benefits, testified the school board’s policies allowed teachers to be credited with the 11 sick days for the academic year, but only if they actually worked during the year, said McGillis.
The union argued that because Mahon took the academic year off for her pregnancy and she wasn’t given the sick-leave credits, the school board discriminated.
But the board countered and said that according to the language of the collective agreement in article C7, when an employee wanted to use the sick days to top up STLDP leave, the board would look back at the teacher’s last year worked, which was 2014-2015 and  Mahon used up all her 11 sick days that year. 
Arbitrator Gail Misra agreed and dismissed the grievance. “I cannot find that the federation has made out a prima facie case of discrimination on the bases of sex and pregnancy in this case. In any event, I find that the application of article C7e) to women on pregnancy leave does not breach the prohibitions against discrimination on the basis of sex or pregnancy in either the collective agreement or the Human Rights Code.”
The board did not discriminate against Mahon, said the arbitrator. 
“It is agnostic on whether the teacher who is off work in the previous year is male or female, and indeed the evidence is that both men and women who were off work, for either some combination of pregnancy leave, parental leave and child-care leave, or a general leave without pay, were all treated in the same manner. While they would all have received an allocation of 11 sick leave days in September of the academic year that they were off, when they returned to work, the board looked back at their last year worked, and allocated to them for their STLDP top-up bank any of the 11 sick leave days they had remaining from their last year worked.”
When Mahon was off, she used 17 weeks of pregnancy leave and the rest via parental leave, which meant she missed the entire year, said Misra. 
“It is only when pregnancy leave is taken in conjunction with the full 35 weeks of parental leave (which is available to both men and women), and when those total weeks span a full academic year, that the female teacher loses the ability to carry forward sick days from the year she did not work. The choice of who will take some or all of the legally available parental leave is that of each family. It is not a sex-driven matter.”
Reference: District School Board Ontario North East and Elementary Teachers’ Federation of Ontario. Gail Misra — arbitrator. Timothy Liznick for the employer. Kate Hughes for the employee. Jan. 28, 2019. 2019 CarswellOnt 1213

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