Bender v. Limestone District School Board, 2016 HRTO 557

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shellie Bender

Applicant

-and-

Limestone District School Board and

Canadian Union of Public Employees, Local 1480

Respondents

DECISION

Adjudicator: Keith Brennenstuhl Date: April 27, 2016 Citation: 2016 HRTO 557 Indexed as: Bender v. Limestone District School Board

APPEARANCES

Shellie Bender, Applicant Rani Khan, Counsel

Limestone District School Board, Respondent Vincent Panetta, Counsel

Canadian Union of Public Employees, Local 1480, Respondent Sue Lott, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of sex (including pregnancy) and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2At all material times to this Application, the applicant was a casual employee holding various positions with the respondent school board. The applicant claims that the respondents discriminated against her when she did not accrue seniority while on unpaid maternity leave and while she was still classified as a casual employee in accordance with the terms of the Collective Agreement for the workplace.

3The respondent, Limestone District School Board (“LDSB”), denies any discrimination for the purposes of the Code.

4The respondent, Canadian Union of Public Employees, Local 1840 (“Union”), essentially supports the Applicant’s claim.

5The argument before the Tribunal was essentially one of law and the matter proceeded by way of an agreed statement of facts and a joint book of documents. On request of the parties, the hearing was bifurcated, so the issue of remedy was not addressed.

The Facts

6The agreed statement of facts reads as follows.

Background

1. The Respondent, Limestone District School Board (the “Board”) is a public school board providing educational services to students in the Frontenac and Lennox and Addington Counties.

2. The Respondent, Canadian Union of Public Employees and its Local 1480 (“CUPE”) represents groups of employees of the board in 2 separate bargaining units.

3. The Applicant, Shellie Bender, is an employee of the Board, represented by CUPE. During her employment, she was covered by two collective agreements: one concerning the maintenance, caretaker, drivers; the other concerning secretarial, office clerical, educational assistants, technical employees.

Work History

4. Ms. Bender commenced employment with the Board on April 21, 2004 as a casual educational assistant. During this time she was covered by the educational assistant’s collective agreement.

5. She took her first maternity leave from April 13, 2005 to April 13, 2006. After her leave she returned to her position as a casual educational assistant.

6. On October 25, 2006, the Applicant was hired as a casual caretaker with the Board. During this time, she was covered by the Caretaker’s collective agreement.

7. Commencing on May 2, 2007, the Applicant was off work on sick leave due to complications from her pregnancy. From July 27, 2007 to July 26, 2008, the applicant was off on maternity leave.

8. After her leave, Ms. Bender returned to her position as a casual caretaker. She was on a sick leave from November 28, 2009 to January 17, 2010. The parties are in dispute on the nature of her absence thereafter. She returned to work on or about, August 29, 2011.

9. On February 1, 2012, she was hired as a full-time caretaker.

Seniority for Casual Employees

10. Under the collective agreement, when a casual employee is made permanent, seniority is credited according to actual days worked (Memorandum of Agreement between Limestone District School Board and the Canadian Union of Public Employees and it Local 1480, Casual Employees, paragraph 8):

“When a person who has been a casual employee becomes a regular employee, seniority shall be so dated as to give credit for the total number of days that person has worked as a casual employee.”

11. Further an employee is considered on probation until she has worked 80 days as a permanent employee. It is the Board’s practice to notify an employee of her seniority after she has successfully completed probation (Article 11.02):

“11.02 Newly hired employees for permanent positions shall be considered to be on probation until he/she has worked a total of 80 (eighty) worked days from the date of hiring.”

12. Ms. Bender was advised of her seniority date from the Board by Memorandum dated July 2012.

13. Ms. Bender did not earn seniority as a casual employee. When she became a permanent employee, she was credited with her actual days worked as a casual employee, for the purpose of seniority. She did not earn seniority for the period when she was a casual employee on maternity and sick leave.

Grievance

14. On January 21, 2013, Ms. Bender wrote to Bill Madden, Human Resources Consultant, requesting credit towards her seniority for the period she was on maternity and sick leave. CUPE also made inquiries on her behalf.

15. On April 29, 2013, Debbi Cadue, Support Staffing Specialist, Human Resources Services with the Board, wrote to Donna Jackson, president of CIPE, advising that the Board would continue its past practice when determining seniority for casual employees who are hired into permanent positions. It was understood by Ms. Bender and CUPE that the Board was denying Ms. Bender’s request to have her maternity and sick leave credited towards her seniority.

16. On May 8, 2013, CUPE filed grievance 2G-1480-2013 on behalf of Ms. Bender. The grievance sought the following:

“The grievor is entitled to earn seniority for the periods she was unable to work due to maternity leave and disability. Failure to credit such seniority is a violation of Article 2 Article 3 and Article 11 along with any other clause, statute or past practice that may pertain to this grievance.”

17. The Board denied the grievance by letter dated July 8, 2013.

18. On July 12, 2013, Ms. Bender commenced this application before the Human Rights Tribunal of Ontario.

19. On August 28, 2014, Ms. Bender met with CUPE to discuss her grievance. She authorized CUPE to withdraw her grievance by letter on or about September 1, 2014.

20. The grievance was withdrawn by CUPE by letter dated November 9, 2014.

7Casual employees under the collective agreement are not provided any guarantee of hours of work and conversely, casual employees are not required to provide the employer with any guarantee of availability. As I understand from the parties’ submissions, casual employees may refuse work when offered to them for various reasons, including their availability.

issue

8In a letter from Counsel for the applicant enclosing the agreed statement of facts, Counsel writes:

Specifically, the parties understand the legal issue to be whether the applicant was discriminated against when the respondent, Limestone District School Board, in accordance with the provisions of the collective agreement, did not credit her with seniority when she was on maternity leave.

Applicant’s position

9The applicant maintains that the LDSB’s refusal to recognize her maternity leaves was discriminatory. She claims that the workplace rule stemming from the Collective Agreement which permits the calculation of casual employees’ seniority on the basis of days actually worked, in essence, excludes her maternity leaves. The effect of this workplace rule is that for some employees, who identify as women, and who either get pregnant or can get pregnant and take maternity leave, is that their seniority is limited. Thus, if they commenced their employment on the same day as a male counterpart and got pregnant and took maternity leave, they will not accumulate the same amount of seniority as their male counterparts because they did not work during their leaves. In other words, but for their maternity leaves, they would have been at work accruing seniority like their male counterparts. The applicant claims that this has an adverse impact on her because with lower seniority she has a lesser chance at filling vacancies, a lesser chance at being hired back after layoffs and a higher vulnerability to layoffs as seniority is an important factor in these determinations.

10The applicant relies on the Ontario Court of Appeal decision in Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital, 1999 CanLII 3687 (“Orillia Soldiers”), which dealt with the impact of seniority provisions in a collective agreement. Under the clauses in question, nurses on unpaid leaves of absence remained employees, but did not accumulate seniority after certain periods set out in the agreements. As well, the employer did not contribute premiums to their benefit plans after the employees had been receiving long-term disability payments for specified periods. The Ontario Nurses’ Association claimed that these provisions discriminated on the basis of disability, contrary to the Code. Judicial review of the arbitration award ruled that the clauses did not contravene the Code. On appeal, however, the Court found that the clauses respecting seniority violated the Code. Employer contributions to employee benefit plans were found to be a form of compensation, and it is not discriminatory to distinguish between employees who are actively providing services to the employer and those who are not, for the purpose of compensation. Therefore, the lack of contributions to benefit plans for employees on long-term disability was not discriminatory. With respect to the accumulation of seniority, the Court held, accrual of seniority was not for the purpose of determining compensation, but for access to workplace opportunities like filling vacancies and determining the order of layoffs and hire backs. In Orillia Soldiers, the seniority provisions were triggered simply by the status of being an employee, a status that long-term disabled employees retain. Therefore, depriving employees of seniority during periods of absence in excess of one year due to disability made them increasingly vulnerable to layoff and also less able to compete equally for promotions. As a result the seniority provisions in question were found to be discriminatory, and were struck down.

11The applicant argues that as with Orillia Soldiers, the seniority provisions in her Collective Agreement are discriminatory. She claims that in her case, like Orillia Soldiers, seniority is not a compensatory benefit or otherwise tied to compensation and that the purpose of seniority is for determining the order of layoffs and hire backs, similar to Orillia Soldiers. Therefore, depriving her seniority during her maternity leaves makes her increasingly vulnerable to layoff and diminishes her chances at being recalled.

Respondent’s position

12The LDSB argues that the applicant was not discriminated against with respect to seniority accrual. It submitted that she was unavailable for work during her maternity leaves. She was a casual employee at the time and casual employees do not accrue seniority under the Collective Agreement when they were unavailable for work, regardless of the reason for the unavailability. Thus, the seniority provisions are not discriminatory on the basis of sex or family status.

13Pursuant to the Collective Agreement, casual employees do not have a right to accrue seniority at all. Any right to accrue and be credited with seniority is only triggered once the casual employee becomes a regular employee and then, as a regular employee, successfully completes a probationary period. The applicant became a regular employee in February 2012, long after her pregnancy-related absences and she was credited for the days that she worked as a casual employee when she became a regular employee.

14LDSB submits that this makes practical sense and is a logical reason why LDSB and CUPE agreed to treat casual employees this way. Hours of work for such casual employees are not guaranteed, are not regular and such employees may at their sole discretion refuse work that is offered to them for whatever reason may exist. As a result, practically the only way to award any recognition of past service for casual employees is to base it on the hours they in fact worked.

15LDSB submits that while Orillia Soldiers can be instructive, the case does not fit with the facts and circumstances of this Application. In Orillia Soldiers, the grievors were regular employees entitled to service and seniority accrual. In this case the applicant was not a regular employee and was not entitled to accrual of seniority at the time of her absences and, in fact, did not become a regular employee until long after those events.

decision

16For the reasons that follow, I find that the applicant was not discriminated against when LDSB, in accordance with the provisions of the Collective Agreement, did not credit her with seniority when she was on maternity leave.

ANALYSIS

17As set out above, the applicant argues that the failure of LDSB to credit her seniority during her maternity leaves was discriminatory. She maintains that, as in Orillia Soldiers, seniority is not related to compensation and is only used to access workplace opportunities. That being said, the applicant argues that the denial of credits towards seniority for the period while she was on maternity leave violates the Code.

18It is arguable, however, that seniority in the relevant Collective Agreement does have a compensatory component. In the collective agreement in Orillia Soldiers, service and seniority were defined separately and used for different purposes, with service being used to calculate various forms of compensation such as paid vacation and placement in the wage grid, while seniority was used only to access workplace opportunities. Here, the Collective Agreement does not make a distinction between service and seniority accrual for the purposes of the Collective Agreement. The Collective Agreement reads; “Seniority is defined as the length of service in the bargaining unit….” In the Collective Agreement, length of service is used to calculate various forms of compensation including paid vacation, short term sick benefits and severance. On that basis it could be said that seniority in this case is related to compensation and that the failure to accrue seniority while on maternity leave did not amount to discrimination under the Code. This would be consistent with the analysis in Orillia Soldiers.

19That being said, in Orillia Soldiers the nurses were full-time employees who were accruing seniority since the date they were hired. In the present case, the applicant was a casual employee who, during her period of casual employment, had no entitlement to accrue any seniority. Indeed, as a casual employee, the applicant’s connection to the employer was through the Collective Agreement but was nonetheless less formal compared to other workers in the bargaining unit. In effect, she did not have a job from which to take a leave. As reflected in the Collective Agreement, she had the right to be offered work but without any guarantees of regular hours. It cannot be said that but for childbirth and associated leave (or any other form of protected leave), she would have been offered a certain number of hours of work. Indeed, during this time she may not have been offered any work in any event. The right to any seniority was only triggered years after the applicant’s pregnancy-related absences, when the applicant became a regular employee and successfully completed the probationary period in early 2012.

20In Orillia Soldiers, employees accrued seniority not for actively working but just by the passage of time by virtue of their status as employees. These inactive periods that counted towards seniority included certain protected leaves when the employee was not actively at work, such as pregnancy, parental and sick leave. By contrast, in the present case, a casual employee has no right and need not seek permission or offer reasons to take a “leave”, as there is no underlying job with a guarantee of hours from which to take a leave. Due to status, a casual employee requires no permission or excuse to decline work. The Collective Agreement provides that casual employees are credited seniority retroactively. That credit is not based on the passage of time over the employment period but is directly linked to the casual employee’s past active performance of work and completion of a successful probationary period.

21Seniority is a right that can only be derived from the collective agreement. See Orillia Soldiers at para. 65. A plain reading of the Collective Agreement suggests that a casual employee who becomes a regular employee receives seniority credit retroactively for hours worked only, regardless of the reason the employee may have declined work, if any was offered. This calculation of seniority credits would apply to all casual workers who become regular employees regardless of the reason for a break in employment, including an adoption, childbirth or illness. The fact is that, under this Collective Agreement, seniority of employees who previously worked on a casual basis is tied to hours worked in a direct and significant way.

22In light of the foregoing, I find that the applicant was not discriminated against when LDSB, in accordance with the provisions of this Collective Agreement, did not credit her with seniority when she was on maternity leave.

23Accordingly, the Application is dismissed.