Hospital discriminated against disabled part-time staffer

Worker denied seniority accrual while away getting cancer treatment

the denial of a part-time disabled worker’s seniority accrual while she was on personal leave was discrimination, an arbitrator has determined.

The hospital worker’s seniority accrual was not credited for a 16-week period while she was on unpaid leave to receive cancer treatment.

The Canadian Union of Public Employees (CUPE) filed a grievance on the worker’s behalf, claiming the employer violated both the collective agreement and the Ontario Human Rights Code.

The staffer was employed as a part-time environmental service attendant at the Peterborough Hospital in Peterborough, Ont. She went on unpaid leave between mid-September in 2009 and January 2010 to receive treatment for cancer.

When the seniority list was next published in July 2010, she noticed she had not been credited for her time on leave and, consequently, other workers that were previously junior to her on the seniority list were now ahead of her.

Further complicating the matter is the fact the collective agreement did not specifically address the issue of seniority accrual for part-time workers on unpaid leave because of a disability.

However, provisions in the contract did deal with seniority accrual for workers who were absent because of a disability that resulted in compensation claims. And those provisions in the contract did specify that part-time workers would accrue seniority while on pregnancy and parental leaves.

Participatory rights

CUPE said the hospital was discriminating against the worker on the basis of a disability, and that it violated the Ontario Human Rights Code. By restricting her seniority accrual in this way, the employer was hampering access and participatory rights to promotions and other workplace benefits that flow from seniority to the worker and any other disabled, part-time workers on personal leave.

The part-time staffer — and others in her situation — was clearly at a disadvantage compared to other workers in the workplace not on disability leave.

And these workers were also at a disadvantage compared to those whose rights were protected because they were on pregnancy or parental leaves or a leave due to a disability that was shielded by a compensation claim.

Depriving disabled employees of the ability to accrue
seniority while on unpaid personal leave was discriminatory because it impacts their ability to compete equally for promotions and other workplace opportunities, the union argued.

On the other side of the fence, the hospital said part-time employees acquired seniority only through actual hours worked. However, there were specific exceptions for pregnancy and parental leaves as well as for leaves granted in conjunction with compensation claims.

The rubric in the contract reflected the fact that the parties had put their minds to the issue, eventually settling on a lesser entitlement for part-time workers. There was nothing necessarily discriminatory in providing different entitlements to different classes of employees.

Similarly, different benefit calculations and entitlements might apply to employees depending on whether or not the origin of a particular disability claim was work-related.

Treated the same

The employer said the worker was not being discriminated against on the basis of a disability. The proper comparator group in this case was not all the other workers in the workplace, but rather other employees on unpaid personal leaves. Employees on an unpaid personal leave because of a disability were denied the benefit of seniority accrual the same as workers on unpaid personal leave for other reasons. So all were being treated the same, the employer argued, adding it had neither breached the collective agreement nor violated the human rights code.

The arbitrator disagreed.

It was clear to the arbitrator the parties determined access and compensation were to be governed separately by seniority and service respectively. It was also clear that the parties had addressed how seniority was to accrue during certain types of leaves.

The arbitrator also acknowledged there were no provisions in the contract to address illness or disability leaves for part-time employees, adding it was important to recognize the bargain struck by the parties as reflected by the collective agreement.

However, the arbitrator said it was necessary to note the worker was compelled to take a personal leave because she was disabled. In these circumstances, the employer was wrong to compare her to other employees on personal leave.

"Grouping together all employees absent from the workplace regardless of the reason for the leave, and then finding that they had been treated alike, would constitute a reversion to a type of formal equality analysis that has long fallen out of favour as courts and tribunals now routinely put substantive equality first, an approach which dictates a much different result."

Were it not for her disability and her part-time status, the employee would have been at the workplace accruing seniority, the arbitrator concluded. In this case, there was prima facie discrimination.

"Ultimately, the only conclusion that can reasonably be reached is that part-time employees on unpaid leave because of disability are being discriminated against on a prohibited ground. No similarly situated full-time employee would be treated this way (see Article 9.04 (c)) (in the collective agreement), nor would employees off on WSIB related leave, subject of course to the limitations set out in the collective agreement. The denial of seniority accrual to part-time employees on leave because of a disability is discriminatory and is not a bona fide occupational requirement. This action contravenes the Human Rights Code."

Reference: Peterborough Hospital and CUPE. William Kaplan — Chair; Beverly Lanigan-Gilmour and Joe Herbert — Members. Lynn Harnden for the Employer. Mark Wright for the Union. July 17, 2013. 21pp.

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