GSB# 2003-0167, 2004-0111, 2004-0112, 2004-0113

UNION# 2003-0999-0011, 2004-0108-0059, 2004-0108-0060, 2004-0108-0061

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union Grievance et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Richard Blair Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Len Hatzis Counsel Ministry of Government Services

HEARING

July 26, December 6, 2005; January 26, June 13, 2006.

Decision

This case raises the issue of whether the Employer discriminates against employees who are absent from work due to work-related injury by not counting that time in the calculation of their continuous service, the accrual of attendance credits or for merit pay purposes.

The parties proceeded by way of an Agreed Statement of Facts. It provides as follows:

1. The Grievor, Thomas Lucan, filed 3 grievances alleging the following:

(a) Grievance dated March 8, 2004 requesting WSIB time to be counted towards CSD calculation;

(b) Grievance dated March 12, 2004 requesting merit increases while on WSIB;

(c) Grievance dated March 12, 2004 stating that he had been denied attendance credits while on WSIB;

2. The Grievor was hired as an unclassified correctional officer beginning April 3, 1995. He was assigned to a classified correctional officer position effective July 31, 2003. While an unclassified correctional officer all of the Grievor’s contracts of employment reflected “Authorized Hours of Work as required up to 40 hours per week.”

3. At various times during his unclassified status, the Grievor was on WSIB either totally absent on WSIB or, at times, working reduced hours but receiving wage loss benefits form the WSIB reflecting the reduced hours. In the event the Grievor was on WSIB, the Ministry did not recognize the Grievor’s WSIB time for the purposes of accumulating attendance credits under Article 31A.8.1 of the current collective agreement, or the relevant equivalent provision at the time.

4. In the event the Grievor was on WSIB while an unclassified, the Ministry did not recognize the Grievor’s WSIB time for the purpose of consideration of merit increases under Article 31A.2.2 of the current collective agreement, or the relevant equivalent provision at the time.

5. In the event the Grievor was on WSIB while an unclassified, the Ministry did not recognize the Grievor’s WSIB time for the purposes of seniority (length of continuous service) under Article 18 of the current collective agreement or the relevant equivalent provision at the time. Upon the grievor’s rollover to the classified service effective July 31, 2003 such WSIB time was, therefore not counted in ascertaining the grievor’s continuous service.

6. The Ministry has a long-standing practice since at least 1995 in applying the above-noted articles in this fashion in the context of WSIB time. Ministry policies relating to merit increases and attendance credits for unclassified staff are attached. Complaints were made and grievances were filed at various times concerning the practice but were resolved without resort to arbitration. The union was not formally advised of the practice.

7. On or about February 19, 2003, the Ministry issued a memorandum internally (copy attached) clarifying its approach to merit increases and accrual of attendance credits for unclassified staff absent on WSIB time.

8. Upon receipt of copy of that memorandum, the Union filed a policy grievance, dated March 27, 2003, regarding merit increases and attendance credits for unclassified employees on WSIB (copy attached).

9. A number of other grievances (list attached) have been filed that raise some or all of the issues noted above. The parties agree that to the extent that these Grievances raise the issues noted in paragraphs 3, 4, and 5 above, they should be arbitrated before Vice Chair Abramsky.

10. With respect to the Grievances noted in paragraph 9, including the Lucan grievances, the parties reserve all arguments regarding the arbitrability of the grievances, the jurisdiction of the Board to entertain any grievance including but not limited to arguments such as timeliness, and any defenses or responses to such arguments.

11. The parties also agree that additional or amended facts may be necessary to deal with questions of remedy should questions of remedy arise.

The February 19, 2003 memo, referred to in paragraph 7 above, reaffirmed the Employer’s policy in regard to unclassified employees with respect to merit increases and accrual of attendance credits while off on an approved WSIB absence. In relevant part, it states as follows:

The hours paid by the WSIB do not count toward merit increases for unclassified employees. Unclassified employees also do not accrue attendance credits when on an approved WSIB absence.

The Ministry policy in regard to attendance credits for unclassified staff is set out in its Human Resources Guide, HRG 12 02 06, issued April 1995. In relevant part, the policy provides as follows:

Attendance Credits:

Unclassified staff, bargaining unit and management, will earn attendance credits of 1 ¼ days for each calendar month of full attendance. Each full attendance credit is equivalent to 7¼ or 8 hours straight-time pay, as applicable.

Eligibility for attendance credits is not dependent upon the nature of the employee’s contract or terms of appointment to the unclassified staff but on total number of non-overtime scheduled or non-scheduled (call in) hours actually worked. This includes authorized leaves-of-absence. …

OPSEU B.U. Staff:

Unclassified, OPSEU bargaining unit members will earn attendance credits of 1 ¼ days for each calendar month of Pregnancy and/or Parental leave-of-absence (per OPSEU CA Article 3.9).

Management/Excluded Staff:

Unclassified management/excluded staff also earn Vacation credits at the rate of 1¼ days for each full month of attendance. Full attendance includes vacation leave-of-absence or leave-of-absence with pay.

Full Attendance:

A 36¼ hour work week (OPSEU CA Art.7.1 & Art.7.3) is interpreted as 145.0 straight-time or non-overtime hours actually worked per calendar month including authorized leaves of absence.

A 40 hours work week (OPSEU CA Art. 7.2) is interpreted as 160 straight-time or non-overtime hours actually work per calendar month including authorized leaves of absence.

A compressed work week agreement is interpreted as all scheduled straight-time or on-overtime hours in the compressed work week schedule for the calendar month including authorized leaves of absence.

Authorized Leaves of Absence:

Include: Holidays (OPSEU CA Art. 3.6)

Vacation (OPSEU CA Art. 3.7)

Sick Leave (OPSEU CA Art. 3.8.1)

Bereavement Leave (OPSEU CA Art. 3.10)

Jury/Witness Duty (OPSEU CA Art. 3.2)

All authorized leaves-of-absence will be treated as hours actually worked for the purpose of determining full attendance and eligibility for attendance credits. For example, an employee in Schedule 4 worked 144 non-overtime hours in a calendar month and was on authorized vacation leave for 16 hours during the calendar month. Hours worked for the month would be (144 + 16) 160 and thus, the employee would receive 1.25 attendance credits for that month. …

The Ministry’s policy regarding merit increases for unclassified staff is found in its Human Resources Guide, HRG 12 03 01, April 1995. In relevant part, it provides:

Policy:

Unclassified staff qualify for merit increases providing their work is satisfactory. Class Salary Schedules provide annual or semi-annual merit increases until employee reaches salary range maximum.

Procedures:

Unclassified staff must perform, substantially the same duties as classified staff in the same classification/position.

Unclassified staff must work in total the same number of regular hours as classified staff in the same classification to quality for merit increase consideration. …

Regular (non-overtime) hours include all regular, irregular, or call-in hours.

Regular (non-overtime) hours for unclassified employees include the following authorized LOAs:

• Holidays/Lieu Days (Art. 3.6)

• Sick Leave (Art. 3.8.1)

• Pregnancy & Parental Leave (Art. 3.9.1)

• Bereavement Leave (Art. 3.10)

• Jury Duty (Art. 32)

• Leave- Military (Art. 33)

• Probation Officer Allowance (Art. 12, see Memorandum of Agreement)

The Employment Standards Act mandates that eligible employees are entitled to pregnancy leave and parental leave without pay. Section 51 and the sections that follow deal with “rights during leave”. Section 51 provides as follows:

51.(1) During any leave under this Part, an employee continues to participate in each type of benefit plan described in subsection (2) that is related to his or her employment unless he or she elects in writing not to do so.

Benefit plans

(2) Subsection (1) applies with respect to pension plans, life insurance plans, accidental death plans, extended health plans, dental plans and any prescribed type of benefit plan.

Section 52 of the Act provides as follows:

(1) The period of an employee’s leave under this Part shall be included in calculating any of the following for the purpose of determining his or her rights under an employment contract:

1. The length of his or her employment, whether or not it is active employment..

2. The length of the employee’s service whether or not that service is active.

3. The employee’s seniority.

Under Section 53, the wage rate to be paid to a returning employee must be equal to the greater of “(a) the rate that the employee most recently earned with the employer; and (b) the rate that the employee would be earning had he or she worked throughout the leave.”

The parties’ provided the following relevant provisions of the collective agreement:

ARTICLE 31A.8 ATTENDANCE CREDITS AND SICK LEAVE

31A.8.1 Employees who work thirty-six and one-quarter (36 ¼) or forty (40) hours per week shall earn attendance credits of one and one-quarter (1¼ ) days for each calendar month of full attendance or for each calendar month of leave of absence granted under Article 31A.9 (Pregnancy and Parental Leave). Attendance credits may be used for protection purposes only in the event that an employee is unable to attend to his or her official duties by reason of illness or injury.

ARTICLE 31A.9 PREGNANCY AND PARENTAL LEAVE

31A.9.1 Pregnancy and parental leaves will be granted to employees under the terms of the Employment Standards Act 2000. Pregnancy leave shall be granted for up to seventeen (17) weeks and may begin no earlier than seventeen (17) weeks before the expected birth date.

31A.9.2 Parental leaves shall be granted for up to thirty-five (35) weeks for an employee who took pregnancy leave, or up to thirty-seven (37) weeks after it began otherwise.

ARTICLE 31A. 10 BEREAVEMENT LEAVE

31A.10.1 An employee who is scheduled to work more than twenty-four (24) hours during a week and who would otherwise have been at work, shall be allowed up to three (3) days of leave of absence with pay in the event of the death of his or her spouse, mother, father, mother-in-law, father-in-law, son, daughter, brother, sister, ward, guardian, stepson, step-daughter, stepmother, stepfather or same-sex spouse. However, in the event of the death of his or her sister-in-law, son-in-law, daughter-in-law, bother-in-law, grandparent, grandchild, step-grandparent or step-grandchild he or she shall be allowed only one (1) day’s leave of absence with pay.

ARTICLE 18 – SENIORITY (LENTH OF CONTINUOUS SERVICE)

18.1An employee’s length of continuous service will accumulate upon completion of a probationary period of not more than nine (9) months and shall commence:

(a) from the date of appointment to the Classified Service for those employees with no prior service in the Ontario Public Service; or

(b) from the date established by adding the actual number of full-time weeks worked by a full-time unclassified employee during his or her full-time employment back to the first break in employment which is greater than thirteen (13) weeks. ….

“Unbroken service” is that which is not interrupted by separation from the public service; “full-time” is continuous employment as set out in the hours of work schedules for the appropriate classifications; and “part-time” is continuous employment in accordance with the hours of work specified in Article 58.1 (Hours of Work).

Effective December 20, 1990, any leaves of absence granted under Article 31.9 (Unclassified Employees – Pregnancy and Parental Leave) and Article 32.19 (Seasonal Employees- Pregnancy and Parental Leave) shall be included in the calculation of length of continuous service.

I also find the following provisions to be relevant:

ARTICLE 27 – LEAVE – JURY DUTY

27.1 Where an employee is absent by reason of a summons to serve as a juror or a subpoena as a witness, the employee may, at his or her option:

(a) treat the absence as leave without pay and retain any fee he or she receives as a juror or as a witness; or

(b) deduct the period of absence from his or her vacation leave or absence credits or his or her accumulated compensating leave and retain any fee he or she receives as a juror or as a witness; or

(c) treat the absence as a leave with pay and pay to the ministry any fee he or she has received as a juror or as a witness.

ARTICLE 28 – LEAVE- MILITARY SERVICE

28.1 A Deputy Minister may grant a leave of absence for not more than one (1) week with pay and not more than one (1) week without pay in a fiscal year to an employee in his or her ministry for the purpose of Canadian Forces Reserve Training.

ARTICLE 24 – LEAVE WITHOUT PAY

24.1 An employee may request a leave of absence without pay and without accumulation of credits. A Deputy Minister shall not unreasonably deny such requests.

Unclassified employees are also entitled to “Union Leave” under Article 23. This provides for a variety of leaves, of varying durations, some with pay and some without pay but with no loss of credits.

In terms of holidays, under Article 31A.5, unclassified employees receive four percent (4%) of regular gross pay to compensate for the holidays as defined in Article 47 (Holidays).

The collective agreement also provides for many other types of leaves which do not apply to unclassified employees – some with pay and credits, some with pay but without credits, some without pay or credits.

Also relevant is Article 6.3 which states that “[i]n filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, seniority shall be the deciding factor.” Seniority also plays a role in redeployment and displacement rights under Article 20.

It is undisputed that the status of an unclassified employee, while off work due to an injury compensable under the Workplace Safety and Insurance Act, is a “leave of absence without pay.” It is common ground that the grievor, as an employee who has received workers’ compensation, has a “disability” under the Code.

The Ontario Human Rights Code was also cited by the parties. In relevant part, it provides as follow:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, record of offences, marital status, family status or handicap. …

10(1) In Part I and in this Part,

“disability” means,

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.

“equal” means subject to all requirements, qualifications and considerations that are not a prohibited ground of discrimination;

11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

17(1) A right of a person under this Act is not infringed for the reason only that a person is incapable of performing or filling the essential duties or requirements attending the exercise of the right because of disability.

Position of the Parties

The Union

In the Union’s submission, the Employer’s failure to recognize the grievor’s time while off work while on workers’ compensation leave in regard to his continuous service date (CSD), his attendance credits and merit pay increases, constitutes discrimination because of disability under the Ontario Human Rights Code and Article 3 of the collective agreement.

In regard to the continuous service issue, the Union argues that this issue was put to rest by Ontario Nurses’ Association and Orillia Soldiers Memorial Hospital (1999) 1999 CanLII 3687 (ON CA), 42 O.R. 692 (Ont. C.A.) (Quicklaw). Seniority there, as here, was used for posting to vacancies, lay-off and recall. The Union argues that seniority, therefore, is not a function of compensation and the Employer’s differential treatment discriminated against the grievor because of his disability.

The Union recognizes that under Article 18.1, the calculation of CSD appears to be tied to work, but asserts that this is a false premise. It asserts that because the collective agreement, since 1990, has included the time that employees are absent because of parental and pregnancy leave time in calculating CSD, the Employer does not actually require employees to work for this benefit. The Union asserts that by including pregnancy and parental leave time, but not including WSIB leave, the policy is discriminatory in violation of the Ontario Human Rights Code and Article 3 of the collective agreement. It submits that once active employment is not required, the Employer cannot assert that work in exchange for this benefit is a bona fide occupational requirement.

In support the Union cites to Re Riverdale Hospital (Board of Governors) and Canadian Union of Public Employees, Local 79 (1993), 1993 CanLII 16729 (ON LA), 39 L.A.C. (4th) 63 (Knopf); OPSEU (Union Grievance) and Management Board Secretariat (1997), GSB No. 2875/96 (Dissanayake); OPSEU (Dan Lane) and Ministry of Community and Social Services (1998), GSB No. 1603/95 (Gray)

In terms of attendance credits, the Union asserts that because the Employer includes time off work for other leaves of absence, it cannot claim that this benefit is in exchange for work. It submits that to exclude time off for WSIB, but not for other leaves of absence, is discriminatory. The Union asserts that the inability to earn attendance credits for WSIB leave treats disabled employees less favourably than employees on other types of leaves of absence, most notably pregnancy and parental leave, but other leaves of absence as well. It argues that the Court in Orillia Soldiers Memorial Hospital compared the disabled employees to other employees on unpaid leaves of absence, yet here, other employees on unpaid as well as paid leaves of absence receive the benefit while employees on WSIB leave do not. In the Union’s view, this is discrimination because of disability.

The Union further argues that the Employer’s application of its policy is not acceptable under British Columbia Government and Service Employees Union (Meorin)(1999), 1999 CanLII 652 (SCC), 176 D.L.R. (4th) 1 (S.C.C.) and Entrop et al. and Imperial Oil Limited (2000), 2000 CanLII 16800 (ON CA), 50 O.R.(3d) 18 (Ont. C.A.). It asserts that the jurisprudence has moved away from comparator groups and adopted a unified, three-step analysis. It submits that the Employer’s policy of treating absences due to WSIB differently from other leaves of absence cannot withstand scrutiny under this analysis. It contends that there is no rational basis to exclude WSIB leave because one need not work to be given the benefit. Because employees on some leaves of absence receive the benefit, it is discriminatory to exclude those on WSIB. Further, the Union submits that it is not possible to demonstrate undue hardship in providing attendance credits while on WSIB, since all kinds of people are absent yet receive the benefit.

The same analysis, the Union argues, applies for merit increases. The policy includes as “work time” authorized leaves of absence – both paid and unpaid. The Union posits the situation of two employees working side by side, one off on WSIB and one off on parental leave. Neither is paid by the Employer, yet the employee on parental leave gets the benefit while the employee off on WSIB does not. Therefore, it submits, for a period of time, the employee on WSIB is disadvantaged in terms of merit pay because of his or her disability. It also argues that the policy fosters a negative stereotype in that it assumes disabled employees are not doing a satisfactory job.

In support, the Union cites to OPSEU (Alcock) and Ministry of Public Safety, Court File No. 757/03 (Ont. Div. Court); Re Glengarry Industries/Chromalox Components and United Steelworkers, Local 6976 (1989) 3 L.A.C.(5ht) 326 (Hinnegan); OPSEU (Martin) and Ministry of Health (1993), 1993 CanLII 16786 (ON GSB), 31 L.A.C. (4th) 129 (Dissanayake); Re Clarendon Foundation (Cheshire Homes) Inc. and OPSEU, Local 593 (1996), 1996 CanLII 20302 (ON LA), 58 L.A.C. (4th) 270 (Craven); Re Pano Cap (Canada) Ltd. and UFCW, Local 1977 (1997), 1997 CanLII 22696 (ON LA), 67 L.A.C. (4th) 176 (Surdykowski).

In sum, the Union argues that attendance at work is not rationally connected to the benefits in issue because of the exceptions which allow employees to receive the benefit while not attending work. The exceptions, it asserts, demonstrate that the Employer does not, in fact, require work for the benefits. Consequently, to exclude employees on WSIB leave from these benefits discriminates against them because of their disability. Consequently, the Union asserts that the grievances should be allowed.

The Employer

The Employer contends that its policies in relation to CSD, attendance credits and merit pay do not discriminate against employees on the basis of disability. In support of that assertion, it relies on Orillia Soldiers Memorial Hospital, supra, and argues that CSD, attendance credits and merit pay are matters of compensation in exchange for work. Even though employees on WSIB leave do not receive these benefits, it contends that they do not because they are not working – not because of their disability.

Attendance credits and merit increases, in the Employer’s submission, are clearly tied to work. It notes that the GSB has long ruled that work or active service is required for attendance credits, citing OPSEU (Howolka) and Ministry of Community & Social Services (1989), GSB No. 1247/87 (Wilson); OPSEU (Union Grievance) and Ministry of Correctional Services (1989), GSB No. 0595/88 (Fisher). Likewise, it asserts that full-time work is required to receive merit pay increases, and that both benefits are compensation in exchange for work.

In support of its position that excluding WSIB leave from the accrual of attendance benefits is not discriminatory, the Employer cites to OBLEU (Pound) and Liquor Control Board of Ontario (1995), GSB No. 3278/92 (Briggs). In that case, the GSB ruled that the employer’s non-inclusion of workers’ compensation leave for accrual of vacation and attendance credits did not violate the Ontario Human Rights Code. The Employer asserts that this case is directly on point and must be followed.

The Employer further asserts that most of the cases relied on by the Union are either distinguishable as ‘participation’ matters, or no longer valid after Orillia Soldiers Memorial Hospital, supra. It further argues that the participation/access versus compensation distinction is still good law, even after Meiorin, supra and Entrop, supra, citing OPSEU (Donaghue) and Ministry of Transportation (2002), GSB No. 0725/95 (R. Brown) and OPSEU (McNally) and Ministry of Transportation (2003), GSB No. 2000-0306 (R. Brown).

The Employer recognizes that some leaves absence are included as time “worked” in regard to CSD, attendance credits and merit pay increases. It argues, however, that simply because the Employer chooses to include some leaves does not mean that it must include all. It notes that pregnancy and parental leave are required to be included as time “worked” by the Employment Standards Act and asserts that it is inappropriate to compare two different statutory schemes. In support, the Employer cites to Re George Brown College and OSPEU (Richmond) (2002), 2002 CanLII 79081 (ON LA), 106 L.A.C. (4th) 398 (Mitchnick); Re Toronto Real Estate Board and CEP, Local 87-M (1998), 1998 CanLII 29976 (ON LA), 76 L.A.C. (4th) 90 (Albertyn). The Employer argues that the Union’s assertion that just because some employees who are not at work receive the benefit, all employees away from work must receive it is not required under the case law or the Human Rights Code.

In the Employer’s submission, Orillia Soldiers Memorial Hospital, supra, is distinguishable in regard to CSD. It asserts that it is distinguishable because under the parties’ collective agreement, Article 18.1, CSD is dependent on an employee actually working full work weeks, not just the status of being an employee. Consequently, it contends that it is not discrimination to require work in exchange for this benefit.

Accordingly, it contends that the grievances should be dismissed.

Decision

A. Is Orillia Soldiers Memorial Hospital still good law?

One of the legal issues in this proceeding is whether or not Orillia Soldiers Memorial Hospital, supra, remains good law. The Union argues, essentially, that it does not after British Columbia Government and Service Employees Union (Meiorin), supra, and Entrop et al. and Imperial Oil Limited (2000), 2000 CanLII 16800 (ON CA), 50 O.R. (3d) 18 (Ont. C.A.). The Employer asserts that it remains the law.

The GSB has determined that issues of this nature – benefits under a collective agreement - are still governed by Orillia Soldiers Memorial Hospital, supra. OPSEU (Donaghue) and Ministry of Transportation, supra; OPSEU (McNally) and Ministry of Transportation, supra. As Vice-Chair Brown stated in McNally, supra at p. 9 concerning Meiorin: “As the case [Meiorin] was about access to employment not wages or benefits, the Court said nothing specifically about how its three-fold test applies to compensation.” Other arbitrators have also determined that Meiorin deals with “the issue of ‘rules’ or ‘standards’ being imposed by employers as qualifications to occupy certain jobs” rather than “issues of continued ‘compensation’ for employees unable to present themselves at work…” George Brown College and OPSEU, supra at p. 5. I concur with that analysis.

But even if that is incorrect and Meiorin does apply, I do not believe it would make a material difference. The reason it would not lies in the Court’s decision in Orillia Soldiers Memorial Hospital, supra. In that case, the Court analyzed the issues from both a direct and indirect (constructive) discrimination approach. It its analysis the Court looked at the justification for the “rule” imposed – that the employer contributes toward premium coverage of participating eligible nurses in the active employ of the hospital – and determined that “requiring work in exchange for compensation is a reasonable and bona fide requirement.” (Decision p. 19). The Court explained: “There is no suggestion that the employer can do anything to accommodate the needs of this group or modify the requirement to place them in a position where they can perform the work.” Further, the Employer was not required to top-up the wages.

Consequently, the unified approach and accommodation analysis required by Meiorin, and followed in Entrop, was essentially done by the Court in Orillia Soldiers Memorial Hospital, supra. Instead, I agree with the conclusion of Vice-Chair Brown in OPSEU (McNally), supra at p. 9: “[T]he Supreme Court’s decision in British Columbia Government and Service Employees Union does not put in doubt the basic point made in Orillia Soldiers Memorial Hospital – there is nothing discriminatory about requiring work in exchange for compensation.”

2. Continuous Service Date

Continuous service or seniority is not a concept which applies to unclassified employees. It only becomes applicable when an unclassified employee becomes classified, as occurred with the grievor, Mr. Lucan. When Mr. Lucan became a classified correctional officer, the Employer did not include his time off work while on Workplace Safety and Insurance Benefits (WSIB) in the calculation of his continuous service date (CSD). This determination did not affect his rate of pay or benefits, but it does impact his seniority in relation to other correctional officers. Under the collective agreement, seniority is used in a variety of situations impacting an employee’s ability to participate and remain in the Employer’s employ. For example, seniority matters under Article 6, in regard to job postings and in Article 20, in regard to surplus and displacement.

There can be no doubt, however, that under the parties’ collective agreement the calculation of an employee’s CSD is tied to working full-time weeks. Article 18.1(b) states that the calculation is made “by adding the actual number of full-time weeks worked by a full-time unclassified employee during his or her full-time employment back to the first break in employment which is greater than thirteen (13) weeks…” This provision, on its face, ties the calculation of an employee’s CSD to “the actual number of full-time weeks worked…” The more an employee works “full-time weeks” as an unclassified employee, the greater his seniority will be upon becoming a classified employee.

Consequently, there is a dispute between the parties as to whether or not seniority, under this collective agreement, is a participation/access benefit or a compensation benefit which requires work in exchange for the benefit.

I conclude that even though the calculation of CSD is tied to work, seniority under this collective agreement is fundamentally and primarily a participation/access benefit. In Orillia Soldiers Memorial Hospital, supra, the collective agreement provided that seniority would only accrue for one year for employees on unpaid leave of absence and in receipt of workers’ compensation benefits or long-term disability benefits. Seniority there, as in the present case, was a consideration in filling vacancies, determining order of layoff and recall. The Court stated at p. 20 (Quicklaw):

In this agreement, seniority directly affects the ability of employees to access, remain in and thrive in the workplace. It is therefore a right that is at the core of human rights legislation as it affects the disabled.

In the Court’s view, the appropriate comparator group, having regard to the purpose of seniority, was “other employees on active service.” It determined that the limitation on the accrual of seniority violated the Code, concluding that “[b]y depriving employees of seniority accrual for the periods when they were unable to work, disabled employees are put at an unfair disadvantage, by reason of their handicap.” (Decision at p. 21)

In my view, the decision in Orillia Soldiers requires a conclusion that the Employer’s failure to include WSIB time in the calculation of an employee’s CSD discriminates against that employee on the basis of disability. CSD impacts, in a very substantial way, an employee’s ability to participate and thrive in the world of work in the Ontario public service. Although there is a direct connection to work in the calculation of CSD, which differs from the situation in Orillia Soldiers which was based on an employee’s status as an “employee”, the exclusion of WSIB time discriminates against employees because of their disability. Further, the Employer has neither alleged, nor demonstrated, that it will suffer undue hardship by including such time in the calculation of CSD.

Accordingly, I conclude that the Employer’s failure to include WSIB leave in the calculation of continuous service discriminates against the grievor because of his disability. In light of this ruling, I do not need to address the other arguments of the Union in regard to this issue although they are relevant to the issues addressed below.

3. Attendance Credits

Attendance credits, under the collective agreement, are a form of compensation in exchange for work. They are an earned benefit, based on working either 36 ¼ or 40 hours per week in a month of “full attendance.” The issue is whether or not the Employer’s failure to credit WSIB leave time for the accrual of attendance credits discriminates against the grievor because of his disability.

This very issue was addressed by Vice-Chair Briggs in OBLEU (Pound), supra. In that case, the grievor was off work due to a compensable injury. During the period of her absence, which was treated as a leave of absence without pay, she did not accrue vacation and attendance credits. Her grievance alleged that the Employer’s failure to provide her with vacation and attendance credits during her absence was due to her disability in contravention of the Ontario Human Rights Code and the collective agreement. Under the OBLEU/LCBO collective agreement, employees on WSIB were treated the same as non-disabled employees on other leaves of absence without pay. There were various types of leaves of absence under the collective agreement, some with pay and accumulation of credits, some without pay or benefits, and some were a combination of the two. Vacation and attendance credits, however, only applied “in respect of a calendar month in which he/she is at work or on a leave of absence with pay for at least one (1) full day.” If an employee was absent for an entire month without pay, they were not entitled to the credit.

The Board ruled that vacation and attendance credits were matters of compensation, not participation. The Board stated at p. 9:

The matter at issue is one of compensation. The Employer’s long standing and continuing practice of disallowing the accrual of vacation and attendance benefits while employees are absent without pay is not a matter of discrimination which impacts upon an employees’ access to employment. It is a matter of an employees’ level of compensation. The Collective Agreement between these parties is clear that attendance benefits and vacation benefits are earned by attendance in the workplace…

Vice-Chair Briggs then determined that the appropriate group to compare the grievor to was not the entire bargaining unit, or employees on other leaves of absence, but “other employees on leaves of absence without pay.” She determined that employees on leaves of absence without pay in receipt of Workers’ Compensation benefits were not treated differently than other employees who were on leaves of absence without pay for other reasons. She reasoned at p. 10: “The scheme under this Collective Agreement provides that employees at work will accrue certain benefits and those who are not at work and not being paid by the employer, do not.” In her view, “the grievor was treated in the same fashion as any other employee who was absent from work without pay.”

In this case, attendance credits are likewise tied to work. Under the Employer’s policy, attendance credits are based on the total number of “hours actually worked” in a calendar month. The difficulty – and it’s a significant one - comes in the fact that hours “worked” for attendance credit purposes include “authorized leaves of absence.” The “authorized leaves of absence” include pregnancy and parental leaves, as set out in Article 31A, as well as the following: holidays, vacation, sick leave, bereavement leave and jury/witness duty. The policy provides that “[a]ll authorized leaves-of-absence will be treated as hours actually worked for the purpose of determining full attendance and eligibility for attendance credits.”

With two exceptions, all of the listed leaves of absence are paid leaves – holiday, vacation, sick leave and bereavement leave. The practice of the parties is to treat paid leaves as hours worked – at least in certain cases such as CSD. This was addressed by the Board in OPSEU (Union Grievance) and Management Board Secretariat (1997), GSB No. 2875/96 (Dissanayake); OPSEU (Schmidt) and Ministry of Community Safety and Correctional Services (2006), GSB No. 2000-0983 (Petryshen). The same approach has been applied to attendance credits and merit pay as well – absences under these paid leaves count as time “worked”, at least notionally.

The same was true in OBLEU (Pound), supra. Paid leaves of absence – even if they were only for one day in a month - were counted as time “worked” in regard to vacation and attendance credit accrual. It was only when the employee was absent without pay for a whole month that the benefits did not accrue. Although the Union argued that the comparator group should be all employees on leaves of absence, the Board ruled that the appropriate comparator was employees on leaves of absence without pay.

The same was true in Orillia Soldiers Memorial Hospital, supra. As evident from the arbitration award in that case, employees on “paid” leaves such as sick pay received full benefit payment and accrued service and seniority credits. Re Soldiers Memorial Hospital, Orillia and Sault Ste. Marie General Hospital and Ontario Nurses’ Association (1996), 1996 CanLII 20329 (ON LA), 58 L.A.C. (4th) 72 (Mitchnick), at p 79. Interestingly, employees on pregnancy or parental leave, although on unpaid leave, accumulated seniority and benefits for 17 or 18 weeks respectively, as then required in the Employment Standards Act. This led the Union to make an “alternative” argument that “some unpaid leaves are treated better than others…” (58 L.A.C. (4th) at 79-80). Neither the Board of Arbitration nor the Court addressed that issue, however, or the issue of employees on paid leaves receiving the benefit. Instead, the Court determined that the “appropriate comparator group is other employees on unpaid leave of absence.” (Quicklaw at p. 19).

Therefore, based on Orillia Soldiers Memorial Hospital and OBLEU (Pound), supra, the critical issue in this case is not that the attendance credit policy exempts authorized leaves of absence, generally. Paid leaves of absence which attract benefit entitlement appear to have been implicitly accepted as “active employment.” Rather, since the “appropriate comparator” is “other employees on unpaid leaves of absence”, the critical issue is whether the Employer’s inclusion of some unpaid leaves of absence, but not WSIB leave, discriminates against the grievor because of his disability.

The two unpaid leaves that are recognized under the attendance credit policy are pregnancy/ parental leave, and jury/witness leave. The pregnancy and parental leaves are without pay yet are included as time worked in awarding attendance credits. Employees who take those leaves may be eligible to receive benefits under the federal Employment Insurance provisions, but they receive no pay directly from the Employer. With jury/witness leave, whether it is paid or not is at the option of the employee. The leave is with pay if the employee turns over the jury or witness fee to the Employer, or if he uses accumulated credits; it is without pay if the employee keeps the jury or witness fee. No evidence was presented regarding how employees utilize this provision.

The Union argues that these exceptions completely erode the requirement that attendance credits are earned by working. It submits that work is not required to receive this benefit, since it is available to employees on these authorized leaves of absence. In the Union’s submission, these facts create a “leaky ship” that can no longer sustain the claim that work is required to receive the benefit, and means that the Employer’s exclusion of WSIB leave is discriminatory.

A distinction must be made between pregnancy/parental leave and the jury/witness leave provisions. 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. In fact, an argument may be made that the legislature’s failure to include similar protection under the Workplace Safety and Insurance Act indicates a legislative determination that such protection is not required.

In George Brown College and OPSEU, supra, the Union challenged the fact that the Employer did not continue certain benefit contributions while the grievor was off work on long-term disability when it would do so for employees off work due to a work-related disability. The Union asserted that to treat employees who were absent due to work-related causes differently from those absent for non-work related causes was discriminatory under the Human Rights Code. The board of arbitration disagreed, concluding that “we do not find that the College’s forced adherence to s. 25 of the Workplace Safety and Insurance Act, 1997, supplementing the Act’s income protection levels with the continuation of employer benefit contributions for a year establishes ‘discrimination’ with non-WSIA employees, and the grievance must be dismissed.” A similar conclusion was reached in Toronto Real Estate Board and C.E.P., Local 87-M (1998), 1998 CanLII 29976 (ON LA), 76 L.A.C.(4th) 90 (Albertyn). Consequently, I conclude that that the Employer’s “forced adherence” to the Employment Standards Act does not establish discrimination against employees on WSIB leave.

That leaves jury/witness leave, which may either be a paid leave of absence or an unpaid leave, at the employee’s discretion. The question therefore becomes: does the possibility that the employee may elect to treat this as an unpaid leave of absence and still have it treated as hours worked for attendance credit purposes render the Employer’s failure to treat WSIB time as hours worked for attendance credits discriminatory?

The case law clearly relies on the fact that the benefit distinction is based on work, or deemed work, and that able-bodied employees who are not at work (and do not receive the benefit) are treated the same. As the Court of Appeal stated in Orillia Soldiers, supra at p. 19 [Quicklaw] in regard to service accrual:

The purpose of service accrual is to fix the level of compensation on the salary grid and vacation pay. Accordingly, for the purposes of s. 5 [of the Code], the appropriate comparator group is other employees on unpaid leave of absence. All employees within this group, handicapped and non-handicapped, are treated the same. Hence, there is no s.5 discrimination.

The decision of the Board in OBLEU (Pound), supra at p.11, similarly rested on the conclusion that “the grievor was treated in the same fashion as any other employee who was absent from work without pay.” Here, however, there is the possibility that able-bodied employees off on jury duty or witness leave may be absent from work without pay, and yet their time would be counted for attendance credit purposes while the time of an employee off work due to a compensable injury would not.

I conclude that this potential exception for jury/witness leaves does not constitute discrimination against employees off work on WSIB. In the record before me, the exception is “potential” because employees may (or may not) elect to treat it as an unpaid leave of absence. The parties have been very precise in their collective agreement regarding leaves of absence and accumulation of credits. There are unpaid leaves under the collective agreement that do not count as time worked for attendance credits. The basic approach of the attendance credit policy is to require work, or deemed work, in exchange for receiving the credits. A provision which only has the potential for an unpaid leave does not negate the work or deemed work requirement for attendance credits. Based on these facts, the Union has not shown that the inclusion of one potential unpaid leave renders the work/deemed work requirement a nullity or that the failure to include WSIB leaves constitutes discrimination because of disability.

There may also be a temporal distinction to be made in regard to jury/witness leave and WSIB leave. In OPSEU (Donoghue) and Ministry of Transportation, supra at p. 7, Vice-Chair Rick Brown cites to a decision he wrote in Canadian Bank Note Company and Graphic Communications Union, dated September 8, 1999, which states, in part (emphasis added):

The Court’s reasoning in Orillia Soldiers was animated by the same fundamental premise articulated in my decision in Versa Services –i.e., that compensation is paid for work. This quid pro quo explains why the Code does not require an employer to pay employees unable to work because of handicap, so long as the employer does not pay employees absent for other reasons for periods of the same duration.

In the same decision, he also quotes from Re Versa Services Ltd. and Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees, Union, Local 647 (1994), 1994 CanLII 18586 (ON LA), 39 L.A.C. (4th) 196, 201 (R. Brown), where he wrote (emphasis added):

There is no evidence to suggest that the employer makes any benefit contributions for an employee without a handicap who is absent for a similar duration. In the absence of such evidence, I cannot find handicapped employees collecting LTD benefits are being treated worse than those without a handicap who have a similar attendance record.

These passages suggest that to establish discrimination there must be temporal comparability – i.e., similar attendance records. It suggests that the fact that an employer may be willing to allow a limited accrual of credits – for a few days or a few weeks – does not require the employer to provide the same benefit for absences potentially of much longer duration.

In addition, the case law is clear that not every distinction in the provision of benefits is discriminatory. Orillia Soldiers Memorial Hospital, supra; Re George Brown College and OPSEU, supra; Toronto Real Estate Board and C.E.P., Local 87-M, supra. It is not appropriate to compare a single benefit in an entire statutory or collective agreement scheme; one must examine the entire benefit scheme and purpose. As noted, attendance credits are a form of compensation to be used to protect against future loss of income due to injury or illness. The parties’ made no submissions on this point, but it is clear from the Workplace Safety and Insurance Act that employees on WSIB are paid for their time away from work and future absences related to their injury are also covered. No evidence was presented that employees on WSIB are disadvantaged, overall, because they do not receive this benefit.

Accordingly, I conclude that, notwithstanding the potential exception for jury/witness leave, the Employer’s policy of requiring work in exchange for attendance credits does not discriminate against the grievor on the basis of disability. As Vice-Chair Brown concluded in OPSEU(Donoghue), supra at p. 11:

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. The facts presented to me disclose no such disparity.

In this case, as well, there was no evidence of an actual disparity – only the potential for one. On the evidence presented, it is not clear whether or not jury duty/witness leave represents any actual differential in treatment, or if did, whether the difference is significant or de minimis.

4. Merit Increases.

The same analysis applies to merit increases as well. This benefit is clearly a compensation benefit – salary level - and is tied to work and performance. It applies only to full-time unclassified employees who “work in total the same number of regular hours as classified staff in the same classification…” Regular hours, however, include the following leaves of absence: holiday/lieu days, sick leave, pregnancy and parental leave; bereavement leave, jury duty and military leave.

Because merit pay is a form of compensation tied to the performance of work, the appropriate comparator group for merit pay increases is other employees on unpaid leaves of absence. Consequently, the question again arises whether the inclusion of these leaves of absence as time worked for merit pay increases, but not absences due to a WSIB injury, constitute discrimination because of disability in violation of the Code and Article 3 of the collective agreement?

Again, the inclusion of pregnancy and parental leave for merit increases is required by the Employment Standards Act. Section 53 of the Act requires that the wage rate paid to an employee returning from leave must equal “the rate that the employee would be earning had he or she worked throughout the leave.” Consequently, time away on that leave must be included as time worked for merit pay purposes, or the Employer would be in violation of the statute. Because it is statutorily required, inclusion of parental and pregnancy leave as time worked towards merit pay does not require the Employer to include other unpaid leaves of absence, or negate the requirement for work.

That leaves two potential exceptions – jury duty and military leave. Jury duty may be either a leave of absence with pay or without pay, at the employee’s discretion. Military leave, which is discretionary (it “may” be granted), has both a paid and unpaid component. Under Article 23, a Deputy Minister “may grant a leave of absence for not more than one (1) week with pay and not more than one (1) week without pay.” So, again, the question arises whether this renders the Employer’s non-inclusion of WSIB leaves of absences in relation to merit increases discriminatory?

No evidence was presented about either jury duty or military leave. All that exists is the potential for employees to utilize them as unpaid leaves, yet still have that time counted in regard to merit increases. All of the reasons I concluded that the Employer’s non-inclusion of WSIB leave as time “worked” for attendance credits does not discriminate on the basis of disability apply to merit increases as well. Accordingly, the Union has not established that the Employer’s failure to include WSIB leaves in the determination of time worked for merit pay purposes discriminates on the basis of disability.

Conclusion:

As noted in the agreed statement of facts (paragraph 10), the parties have reserved all arguments regarding the arbitrability of the grievances and the jurisdiction of the Board to entertain these grievances. With that caveat, I rule as follows:

1. The Employer’s failure to include the grievor’s WSIB time for CSD purposes discriminates against him on the basis of disability.

2. The Employer’s failure to include the grievor’s WSIB time for attendance credit purposes does not discriminate against him on the basis of disability.

3. The Employer’s failure to include the grievor’s WSIB time for merit pay purposes does not discriminate against him on the basis of disability.

4. I shall remain seized.

Issued at Toronto this 4th day of January 2007.