Keith Boundy v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services, 2009 HRTO 1667

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Keith Boundy Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services Respondent

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Keith Brennenstuhl Date: October 13, 2009 Citation: 2009 HRTO 1667 Indexed as: Boundy v. Ontario (Children and Youth Services)

APPEARANCES BY

Keith Boundy, Applicant (On his own behalf) Ministry of Children and Youth Services, Respondent (Omar Shahab, Counsel)

1This is an Application filed December 18, 2008, under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The underlying human rights complaint was filed with the Ontario Human Rights Commission on January 10, 2008, and abandoned upon the filing of this Application with the Tribunal. The applicant claims that he has suffered discrimination in the area of employment on the basis of disability.

2The Case Resolution Conference ("CRC") was held on August 24, 2009, in accordance with the expectation, expressed in the Code and the Tribunal's Rules, that section 53(3) applications proceed in a highly expeditious manner.

BACKGROUND

3The applicant is employed by the Ministry of Children and Youth Services as an Operational Manager at the Brookside Youth Centre and was so employed at all material times relevant to this Application.

4As an Operational Manager, the applicant's terms and conditions of employment are governed by the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sch. A, and its associated regulations and directives. The Management Compensation Plan, Pay for Performance Operating Policy ("P4P") links salary and pay increases to the achievement of results. P4P evaluations for eligible employees are normally conducted on April 1 of each year.

5The P4P Operating Procedures ("P4P Procedures") outline the eligibility criterion and the basis for performance reviews for employees in the applicant's job classification. The applicant's performance review for 2006 – 2007 was conducted in accordance with the P4P Procedures. The P4P Procedures state that "the employee is eligible for a performance award if he/she has spent at least twelve weeks in the position during the fiscal year."

6The review period for the applicant's evaluation for 2006 was from April 1, 2006 to April 1, 2007. The applicant was injured at work on June 1, 2006 and began a WSIB approved leave on June 2, 2006. He did not return to work until May 8, 2007. Hence the applicant was in the workplace for only nine weeks of the 52-week period on which his performance was to be evaluated. In accordance with P4P Procedures no review was conducted for the applicant for 2006 – 2007 as he failed to meet the twelve week eligibility requirement set out in the policy.

7In August 2007 the applicant received a memorandum from the respondent explaining that he "did not meet the eligibility criteria of the 2006/07 program" and that "[a]s a result, there is no monetary award to be paid."

8The applicant claims that the application of the policy is discriminatory on the basis of disability. He complains that he has been denied an earning increase due to how the P4P Procedures treated his absence flowing from a WSIB compensable injury.

9The applicant also maintains that he was treated differentially. He indicates, and it is not disputed by the respondent, that while his disability related leave of absence was not included as time worked for the purpose of eligibility, leaves of absence are included as time worked for the purpose of earnings increases for employees who are absent on pregnancy and parental leaves, family medical leaves and emergency leaves.

DECISION

10The Application is dismissed.

ANALYSIS

11P4P is predicated on rewarding work performance of employees following a rigorous evaluation process. It is essentially a scheme for determining salary increases for employees. In other words it is a compensation benefit tied to work and performance.

12In Ontario Nurses Assn v. Orillia Soldiers Memorial Hospital, 1999 CanLII 3687 (ON CA), [1999] O.J. No. 44, 42 O.R. (3d) 692, the Ontario Court of Appeal considered whether the employer discriminated against disabled employees by determining they were not entitled to seniority, service accrual or employer contributions to subsidized benefits while they were on leaves from the workplace. The Court determined that it was not discriminatory for the employer to deny benefits to the grievors because they did not provide work for the benefits. The Court stated: "It is not prohibited discrimination to distinguish for purposes of compensation between employees who are providing services to the employer and those who are not. It would be prohibited discrimination for the employer to provide different compensation to different groups of employees providing services, if the distinction were based on a prohibited ground" [para. 27].

13A number of decisions have applied Orillia Soldiers. In OPSEU (Pound) and LCBO, GSB Decision No. 3278/92, February 8, 1996 (Biggs) the Vice-chair determined that the grievor was not discriminated against when she was denied vacation and attendance credits for the period of time that she was on WSIB leave. Similarly, in OPSEU (Donaghue) and Ministry of Transportation, GSB No. 0725, December 3, 2002 (R. Brown) the Vice-chair determined that the employer did not discriminate against the employee by failing to pay him income protection benefits and pension contributions because he was away from the workplace due to illness. The Vice-chair stated:

This differential treatment was based upon work, not disability, and does not contravene the Code. There would be a contravention only if the grievor received less favourable treatment than employees absent from work for some reason other than disability. (at p. 27)

14Given the jurisprudence, I am persuaded that an employer is not required to provide compensation benefits to employees who are on disability leaves, as long as it treats all employees who are on leave and not providing work in the same manner.

15The question, therefore, is whether the compensation benefit is being withheld by the respondent from all similar groups of employees who are on leave from the workplace. Having reviewed the P4P and P4P Procedures I am satisfied that the twelve week eligibility criterion is generally applied to all employees who are on leaves of absence and not just employees who are unable to work due to disability. However, there appear to be five exceptions where employees do have their leave time counted for the twelve week eligibility requirement.

16Where an employee is granted a paid leave in lieu of vacation time that was forfeited at the request of the employer, that employee's leave is counted for P4P purposes just as if it were paid vacation. Given that leave in lieu of vacation is a direct substitute for paid vacation which was given up at the request of the employer, it would seem logical that leave in lieu of that vacation be treated in the exact same way as vacation time.

17The other four exceptions in the policy are pregnancy and parental leaves, family medical leaves and emergency leaves. The applicant argues that he was discriminated against precisely because these leaves are counted for performance evaluation while his WSIB leave was not.

18The Employment Standards Act, 2000, S.O. 2000, c. 41 (the "ESA") provides that employees are entitled to pregnancy leaves (section 46), parental leaves (section 48), family medical leaves, (section 49.1) and emergency leaves (section 50).

19Section 53(3) of the ESA reads:

The Employer shall pay a reinstated employee at a rate that is equal to the greater of:

(a) the rate the employee most recently earned with the employer; and

(b) the rate that the employee would be earning had she worked through out the leave.

20The effect of this section is that employees on parental, pregnancy, family medical or emergency leaves are entitled by statute to have their leave time counted for the purposes of earnings increases. The purpose of the P4P policy is to determine the appropriate level of earnings increases for any given employee. In my view, it would be a breach of the ESA for the respondent to not count time on the four specified leaves in the P4P review period.

21The jurisprudence leads me to conclude that an employer is not required to provide compensation benefits to all employees on leaves of absences just because the ESA requires that certain leaves be counted in allocating the benefits. In OPSEU (Union Grievance et al.) and Ministry of Community and Correctional Services, GSB No. 2003-0167, January 4, 2007 (Abramsky) the Ministry did not recognize the grievor's WSIB time for the purposes of calculating continuous service date, merit increases or attendance credits. Though WSIB leaves were not counted for the benefits, pregnancy and parental leaves were. The Vice-chair determined that counting pregnancy and parental leaves did not mean that WSIB leaves also had to be counted in providing the compensation benefits. The Vice-chair concluded:

The inclusion of pregnancy and parental leaves as time worked for attendance credits is mandated by law. The employer, under the Employment Standards Act, cannot deprive the employee of benefits or "service" credit due to taking the leave. Following the requirements of a statute does not mean that the Employer has opened itself to a claim that it does not require work, or deemed work, in exchange for the benefit, or that its failure also to include WSIB leaves is discriminatory. (at p. 23).

22The Vice-chair noted further that since the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A did not require that WSIB time be counted for the purposes of employee earnings, like the ESA did for specified leaves, this could be seen as indicative of legislative intent that the protection was not to be afforded.

23Based on the reasoning in Union Grievance, I am of the view that the applicant's assertion that he was subjected to discrimination because ESA-mandated leaves were counted but not WSIB leave for eligibility for an earning increase is without merit.

24I find that the applicant was not treated differentially because of his disability. With the exception of ESA-mandated leaves, eligibility for P4P review is based on actual work performed and as such did not result in the applicant being treated any differently than other employees who did not attend the workplace.

25No evidence was educed to suggest that as among employees on WSIB leaves, the applicant was subjected to differential treatment based on a Code protected ground.

ORDER

26For all these reasons the Application is dismissed.